Date of Filing: 02-12-2015 Date of Final Order: 30-08-2016
Sri Debangshu Bhattacharjee, Member.
The gist of the complaint as culled out from the record is that the Complainant purchased a Lava Mobile phone particulars are given below from the O.P. No.1, Mobile World, Cooch Behar on 06/06/2015 amounting to Rs.6,200/- and the O.P. No.1 assured the Complainant that they will render proper service towards the Complainant.
Particulars of the Mobile Set :-
a) Model - XI grand
b) Make – LAVA
c) IMEI NO. 911424853065613
d) Battery – FHLN1500017823
e) Charger – HGD1500001135
From the date of purchasing the said mobile handset was not working properly and there was not showing Data Cable. Thereafter, the Complainant went to the O.P. No. 1 for changing the said Mobile Phone but the O.P. No.1 advice to go to the Lava Mobile Servicing Centre, namely Mahamaya Enterprise i.e. the O.P. No.2.
Afterwards, the Complainant contacted with the O.P. No.2 on 04/11/2015 for repairing the said handset and the O.P No.2 received the same and was point out that “Data Cable not showing” After repairing the said handset, the O.P. No.2 delivered the same to the Complainant on 25/11/2015. After such repair the same problem again cropped up along with some other related problems and the said defects were arisen within the warranty period and presently the O.P. No.2 received the said mobile for repairing and was point out “Data Cable not supported” but till date they did not return the said mobile handset. In the long run, the Complainant made several contact orally and over telephone to the O.P. No.2, i.e. Mahamaya Enterprise Servicing Centre for narrating the incident with the requested to replace the defective mobile or solve the said defects but all efforts were in vain.
Due to such activities of the O.Ps, the Complainant is in hard-up and facing hindrance as well as suffer irreparable loss due to malfunctioning of the said Mobile phone. The Complainant also suffered from acute mental pain and agony, pecuniary loss and unnecessary harassments by adopting deficiency in service and unfair trade practice of the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps for replacement of the Mobile Phone free of cost or for refund of value of the Mobile Phone. i.e. Rs.6,200/-, and also to pay (i) Rs.10,000/- as compensation for mental pain & agony and unnecessary harassment, (ii) Rs.10,000/- for deficiency in service and unfair trade practice and (iii) Rs.5,000 /- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
In the present case, the O.P. No.1, Mobile World, Cooch Behar appears before this Forum and filing a petition after receiving the Notice. After that O.P. No.1 did not turn up in this case, for which this case was heard in Ex-parte against the O.P. No.1.
The O.P. No.2, Mahamaya Enterprise, Cooch Behar has contested the case by filing W/V denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P is that the Complainant for the first time brought the handset on 04/11/2015 to the O.P’s Service Centre with complaining some problems which may happen due to mis-handling of the said handset. Thereafter the O.P. No.2 assured the Complainant that for thorough check up the said handset should be kept at their service center for few days and after repairing the said handset they will returned the same to the Complainant with his full satisfaction and also intimated him that he should use the said handset properly and carefully as the said handset has a multiple software and most of the people do not know how to use the said multiple software and also advised him to follow the user guide to avoid such types of problems.
It is pertinent to mention here that the Complainant has brought the said handset which has multiple software and may arise problems due to mis-handling, excessive net surfing or not having proper knowledge of handling its software or due to virus attacks for this reason the company suggested to follow their user guide to avoid such types of problems but the Complainant without following such guide lines of the company, uses the said handset very roughly which may caused such types of problems.
The O.P. No.2 further contended that the Complainant again came to this answering O.P’s concern with complaining same problems and this time too the O.P. No.2 solved the problem and request the Complainant to take back the said repaired set but the Complainant did not pay any heed.
Further, it is pertinent to mention here that when the Complainant came to this O.P. No.2 with complaining some problems and the O.P. No.2 repaired the same with utmost care and attentively and lastly when the Complainant again came to the service centre of the O.P. No.2 for the 2nd time they repaired the said handset and asked the Complainant to take back the said set but the Complainant did not turn up till date. With regard to “Data Cable not supported” it does not attract the liability to the O.P. No.2 it is wholly depends on the manufacturing company whether the “Data Cable not supported” supported in the said set or not.
It is the case of the O.P. No.2 that they value their customer hence, whatever services the customer requires, they tried their level best to provide them accordingly. So deficiency in service as well as metal pain and agony and harassment as alleged by the Complainant in her complaint does not arise at all. Due to illegal gain and bargain, the Complainant after repeated call did not receive back the said hand set from the O.P. No.2.
Ultimately, the O.P. No.2 prayed for dismissal of the case with sufficient costs.
It appears that no S/R of Notice upon the O.P. No.3, Lava International Ltd., Noida, U.P is received. The Notice was sent to the said O.P on proper address dated 18/12/2015 through Regd. Post with A/D but no S/R is received by this Forum. In this premises this Forum has been taken recourse of Section 28 A (3) (Proviso). Thus, the case proceeded with Ex-parte against the O.P. No.3.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also heard both the parties (Complainant and O.P. No.2) at a length. Perused the entire relevant documents of the parties in the record along with Written Version, Evidence on Affidavit and Written Argument filed by the Complainant and O.P. No.2.
Point No.1.
Evidently, the Complainant purchased a LAVA XI grand Model mobile set of Rs.6200/-from O.P-1,MOBILE WORLD. The O.P. No.2, Mahamaya Enterprise is the service centre of LAVA International and the O.P. No.3, the manufacturer of the mobile set (LAVA International Ltd.) in question.
So, relation between the complainant and the O.Ps so established from the records we are convinced to hold that the Complainant is the consumer of the Opposite parties as per Section 2(1)(d)(ii) of the C.P. Act, 1986.
Point No.2.
The O.P. No.1, Mobile World, seller of the mobile set and the O.P. No.2, Mahamaya Enterprise, service centre of LAVA Mobile phone have their office at Cooch Behar town.
Valuation of the case is far less than the prescribed limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try the case.
Point No.3 & 4.
From the discussion herein before, we transparently find that O.P. No.1(Mobile World) in his written petition admitted the prime points of purchase of the mobile set by the Complainant from his shop , B.S. Road, Cooch Behar. He also claimed that the OP No 2&3 are responsible to give proper services.
We find that, said set is received by the O.P. No.2 for giving after sell services. Being the Service Centre of the Company OP-2 in his Written Argument stated that “2nd time we repaired the said hand set”. The main problem of the mobile set is “DATA CABLE OF THE MOBILE SET NOT SUPPORTED” The O.P-2 received the said hand set and issued a JOB CARD in favour of the Complainant on 04/11/2015 and it appears that being an authorized service centre of LAVA International, the O.P. No.2 himself is in a confusion that, whether the mobile set (LAVA XI grand) have the data cable facility or not.
The complainant submitted the user manual of the said mobile phone which established that the data cable facility is available in this (LAVA XI grand) mobile phone. (Page 6 of User Manual).
We do not find any documents as to the warranty of the said hand set but it is fact that the set was faced problem within short period of purchase that is also admitted and it can be reasonably presume that the dispute cropped up within the warranty period and as such the Complainant is entitled to get proper service from the service provider.
We also perused the Written Argument of the Complainant which speaks that the Complainant handed over the disputed mobile hand set to the Opposite Party No.2 intended to return back the set in working condition but all are in vain. Till date the Mobile hand set is under the custody of the OP No-2.
From the discussion made herein before, we find that the problem in the mobile hand set cropped up within the warranty period. Within one year the Complainant placed the set two times before the service centre for which it is reasonably be presumed that the said set has some inherent defect In view of ruling reported in 2014 CJ 402 (NC) “The Company is liable to replace the defective set or make return the price of the said goods”. It is the duty of the service provider to render proper service to the customer free of cost within the warranty period as per warranty conditions. As and when the problem cropped up within the warranty period the consumer has every right to go service centre to avail proper service.
In this case OP No-1 MOBILE WORLD, seller of the mobile set did not take any step after selling the product. The OP-No1 did not turn up in this case after filing a petition.
On perusal the Evidence on Affidavit submitted by the complainant it appears that O.P-No-2 MAHAMAYA ENTERPRISE, service centre of LAVA Mobile phone repaired the mobile phone in several times but unable to understood the problem of the said mobile set. Till date the mobile set is under the custody of OP-2.
The O.P. No.3 LAVA International Ltd. never appear in this case to contest the matter raised by the complainant.
In the light of foregoing discussion and documents made available, we are bound to hold that the O.P. No. 1 & 3 are totally and OP-2 is partly guilty of deficiency in service by not taking proper steps even the complainant registered his complain within one year of purchasing the Mobile Phone. Further, the O.P. No. 1&3 did not come forward to contest the case even after filing the written petition by OP-No-1.
The prayer of the Complainant is to return back the total purchased amount of the disputed hand set or replacement of the Mobile phone with compensation by the O.Ps.
In this juncture, it is also pertinent to mention that only being the service provider the O.P. No.2 (MAHAMAYA ENTERPRISE) has no liability to return back the cost of the Mobile but he is partly liable for deficiency in service. Only the Company (LAVA International) or its authorized dealer (MOBILE WORLD) is liable to return the price of the set with compensation to the Complainant.
On the basis of upper mention fact it is easily said, that only refund of the cost of the mobile hand set will met the justice as and when it is already decided in a case reported in 2009 CTJ 180 (CP) (SCDRC) that- in a dispute of a defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution as such goods may not be up to the satisfaction of the consumer.
ORDER
Hence, it is ordered,
That the complaint is allowed in Ex-parte against the O.P. No. 1 & 3 with cost of Rs.1,000/- each and also allowed on contest against the O.P. No.2 with cost of Rs.1,000/-. O.P-2 is further directed to refund the said mobile phone to the complainant. The O.P. No. 1 &3 is jointly or severally directed to refund the amount of Rs. 6,200/- as cost of the said Mobile Hand Set with Rs. 2,000/- as compensation. Complainant is directed to refund the Mobile handset to OP-1 after receiving the decretal amount. The O.P No-1&3 are further directed to comply with the above order jointly and/or severally within 45 days. Failure of which the O.Ps shall have to pay @ Rs.50/- for each day’s delay by depositing the accrued amount if any in this regard, in the State Consumer Welfare Fund, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
