BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

20^TH DAY OF OCTOBER 2015

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying for an order against Opposite Party (herein after referred as OP) to pay compensation of Rs.2,00,000/- for mental agony for losing the customers, Rs.2,00,000/- towards loss in business and Rs.2,00,000/- for loss of future business on the allegation deficiency in service. 

2.  The brief averments made in the complaint are as follows:

The complainant having a provisional store and also supply mineral water to the customers who places order through phone.  OP is a dealer in selling the mobile phones.  On 11.01.2014 complainant visited the OP shop to purchase a Sony Xperia Z1 Black mobile phone.  OP quoted the price of Sony Xperia Z1 black as Rs.26,990/-.  The complainant paid a sum of Rs.10,000/- as advance under an order form No.249 and OP told the complainant to pay balance amount on the next day and collect the phone.  On 12.01.2014 complainant purchased Sony Xperia Z1 black mobile phone box piece bearing IMEI No. 35538705-023775/1 under invoice No.9155399 by paying a sum of Rs.26,990/- inclusive of tax. The complainant came to know that the OP has supplied the handset which does not belong to the box piece number, but supplied defective second hand phone bearing IMEI No.35538705-004044/5.  The intention of the OP right from the purchase is to cheat the complainant.  The handset was not functioning properly. On 17.03.2014 complainant returned the handset to OP for non-functioning of the same.  On the advice of OP complainant contacted the service centre which found that the Sony Xperia Z1 black mobile phone bearing a different IMEI No. 35538705-004044/5 and informed the complainant that the handset does not belong to the box piece number.  OP has intentionally sold the used second hand phone as a new box piece.  Immediately complainant went to OP showroom and informed the said fact to OP.  OP in order to suppress their fraudulent act collected the original bill dated 12.01.2014 bearing IMEI No. 35538705-023775/1 from the complainant and replaced with a new bill bearing IMEI No.35538705-004044/5 dated 12.01.2014 under invoice No. 915539 for Rs.26,990/- to match the phone IMEI number.  Thus OP with an intention to cheat the complainant had issued two different IMEI numbers under same invoice No.9135539.  Once again complainant went to service centre who accepted the phone bearing IMEI No.35538705-004044/5 for non-functioning of the same.  After few days he found that the said phone was a second hand phone which has been sold to one Mallika Arjuna on 10.01.2014 as per the invoice dated 06.03.2014.  OP instead of giving the box piece phone containing the box piece IMEI number gave a second hand phone in the beginning.  Subsequently gave the phone which matches the box piece EMI no.  Even that phone is a used phone which is apparent from the look of the phone.  On examination of the phone he came to know that phone has been used and call have been made even before the phone was handed over to the complainant.  Immediately, complainant pointed out the look and usage of the phone and tried to return the same.  But OP refused to take back the phone and began to threaten with dire consequences thereby cheated the complainant.  Since complainant is running a provisional store and selling mineral water in canes regularly to his customers who placed the orders through phone, the complainant business is mainly depends on the order through phone.  If the customer placed an order for mineral water canes or provisions the complainant delivers the same to their houses. Because of non-functioning of the defective phone the complainant had to lose his customers in the competitive world in turn lost his business.  The livelihood depends on order through by his customers.  Because of non-functioning and non-communication through phone there was a big loss in his business to the extent of Rs.2,00,000/-.  The complainant used to supply 50 to 60 mineral water canes per day to the customers on order through phone.  For  non-supply of mineral water there is loss of Rs.500/- to Rs.600/-  per day.  Similarly from supply of provisional items to the customers, altogether there is a loss of Rs.1,000/- per day.  For nearly six months the complainant has lost the customer one by one.  For few months almost all the customer who felt the complainant was not responding to their phone and left him for no customer service.  Inspite of several demands OP failed to change or replace a brand new piece of the phone.  Hence, left with no alternative complainant got issued notice dated 21.04.2014 calling upon the OP to issue a new phone within 15 days then failing which, the complainant will constrain to initiate the appropriate legal action.    Inspite of service of notice OP neither replied nor issued a new phone to the complainant.  Complainant doesn’t want a phone from the OP but prays for compensation for loss incurred in the business for losing the customers and undergoing mental agony for losing the customers and losing the business and spending huge money to regain the lost customer which is herculean task. Hence, complainants felt deficiency in service against OP. Under the circumstances, he is advised to file this complaint against OP for appropriate relief.

3.  After registration of the complaint, notice was issued to OP.  Inspite of service of notice OP remained absent.  Hence, OP is placed exparte and posted the case for filing affidavit of the complainant.  

4.  So as to prove his case, complainant filed affidavit evidence in support of his complaint and submitted written submission.

5. So as to prove his case, Mr.Siddique, who being the complainant has filed his affidavit evidence in support of his complaint reiterating the complaint averments and produced documents.

6. The above said assertions of the complainant have remained unchallenged. OP neither filed version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

7.  Let us have a cursory glance at the documents produced by the complainant. Document No.1 is order form bearing No.249 dated 11.01.2014 issued by OP i.e., Modern Radio Engineering Company to the complainant towards purchase of Sony Xperia ZL (Black) which shows advance payment of Rs.10,000/- to OP.  Document No.2 is copy of the Cash Bill issued by OP to the complainant dated 12.01.2014 for purchase of Sony Xperia ZL black mobile phone box piece bearing IMEI No. 35538705-023775/1 under invoice No.916380 for a sum of Rs.26,990/- inclusive of tax Document No.3 is also a cash bill/invoice copy bearing different IMEI No.355387050040445 dated 12.01.2014 issued by OP to the complainant.  Document No.4 is Job card dated 06.03.2014 issued by service centre to one Mallika Arjuna in respect of mobile bearing IMEI No.355387050040445.  Document No.5 is also a cash bill /Invoice dated 12.01.2014 issued by OP to the complainant for having sold C6502 Xperia ZL/Black mobile phone bearing IMEI No:35538705-004044-5 for a sum of Rs.26,990/-.  Document No.6 is copy of the legal notice dated 21.04.2014 issued on behalf of the complainant to the OP calling upon OP to issue a new phone within 15 days failing which complainant will initiate the appropriate legal proceedings against OP.

8. On perusal of oral and documentary evidence of the complainant, it is made crystal clear that OP has supplied second hand mobile set showing IMEI No.35538705-023775/1 on the phone box but supplied handset which does not belong to the box piece number as per document No.2 & 3 invoices.  The said handset was defective hence complainant approached the authorized service centre suggested by OP as per document No.4 job card, wherein complainant came to know that the handset supplied by OP has been sold to one Mallika Arjun on 10.01.2014.  Complainant informed the said fact to OP.  OP collected the original bill from the complainant and replaced with a new bill with IMEI No.35538705-004044/5 under the same invoice dated 12.01.2014 to match the IMEI number of the phone set and issued the handset matching IMEI number of the box.  After few days complainant came to know that the said handset is also a second hand one.  OP refused to take back the handset.  Complainant got issued legal notice dated 21.04.2014 calling upon OP to issue new hand set within 15 days.  Inspite of service of notice, there is no response from OP.  Hence, this complaint.

9. From the material available on records, it is crystal clear that OP having collected Rs.26,990/- from the complainant has supplied second hand mobile handset Sony Xperia to the complainant.  In spite of repeated requests and notice, OP has failed to respond.  This act of OP in supplying second hand mobile handset amounts to unfair trade practice and deficiency in service on the part of OP.  We are satisfied that the complainant proved the deficiency in service against the OP.  Complainant has claimed compensation of Rs.2,00,000/- and Rs.2,00,000/- towards loss of business which is exorbitant and without any basis.  Complainant has not produced any documents to show what was his income and for how many days he has suffered loss.  In the absence of any material evidence and under the given circumstances, we are of the considered view that the complainant is entitled for nominal compensation of Rs.15,000/- towards mental agony and hardship caused along with litigation cost of Rs.2,500/-.  Accordingly, we proceed to pass the following:

O R D E R

The complaint filed by the complainant is allowed in part.  OP is directed to pay compensation of Rs.15,000/- towards mental agony and hardship caused to the complainant.  Further OP is directed to pay litigation cost of Rs.2,500/- to the complainant.

This order is to be complied within 30 days from today.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 20^th October 2015)

MEMBER                            MEMBER                         PRESIDENT

Nrs/vln

COMPLAINT NO.1413/2014

Complainant                 -        Mr.Siddique,

Bangalore-16.

                                          -vs-

Opposite Party              -        M/s. Modern Radio
                                                    Engineering Co.,

Bangalore-43.

Witnesses examined on behalf of the complainant dated 26.03.2015.

1. Mr.Siddique

                 OP    -       Absent

MEMBER                           MEMBER                      PRESIDENT

Nrs/Vln*