Nidhi Verma, Member.

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11 and 12 against the opposite parties on the allegations that the opposite party No. 1 is importer and seller of cell phones and opposite party No. 2 authorised service centre of opposite party No. 1. The complainant purchased one cell phone model HTC One on 12.7.2016 vide bill NO. 35826 of Rs. 26,000/- from M/s Jai Shankar Telecom Amritsar. The cell phone purchased by the complainant stop working and started problems like Hang, Restart itself etc. on 26.4.2017. So the complainant submitted his cell phone to opposite party No. 2 through his representative on 28.4.2017 for repair under warranty period. The opposite party No. 2 assured to complainant that they will repair cell phone of complainant within 3 days. But the opposite party No. 2 failed to repair cell phone within 3 days. The complainant has been harassed by the opposite party No. 2 by delaying the repair of cell phone on one or other pretext. Ultimately opposite party No. 2 returned cell phone to the complainant on 21.5.2017. After came back to home complainant inserted sim card in phone and checked functioning of cell phone. The complainant shocked to see that his cell phone was still suffering from same problem. Then the complainant called at helpline number 18002663566 of opposite party No. 1. They advised to complainant for submit cell phone again at opposite party No. 2.  The complainant submitted his cell phone to opposite party No. 2 on dated 22.5.2017 and they assured to complainant that cell phone will be repaired or replaced within 5 days. But opposite party No. 2 again failed to repair or replace cell phone within 5 days. The opposite party No. 2 harassed the complainant by delaying repair or replacement of cell phone. Ultimately opposite party No. 2 returned cell phone to the complainant on 24.6.2017. Cell phone was again suffering from same problems. So complainant again submitted his cell phone to opposite party No. 2 on 27.6.2017 and they assured to complainant that cell phone will be repaired or replaced within 7 days. But opposite parties failed to repair or replace the cell phone of complainant till date. The complainant has suffered great hardship and it amounts to gross deficiency in service and unfair trade practice on the part of the opposite parties. The complainant has prayed that the opposite parties may be directed to immediately repair or replace cell phone of complainant and extend warranty period for 75 days and also prayed Rs. 30,000/- as compensation and Rs. 10,000/- as litigation expenses.

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complainant is habitual litigant as he is in the habit of blackmailing the innocent persons by way of filing false and frivolous complaints. The complaint is bad for misjoinder and non joinder of necessary parties. The manufacturer company of the mobile phone in question as well as alleged dealer from whom the complainant alleged that he purchased the mobile in question i.e. Jai Shankar Telecom are not impleaded as parties to the present complaint inspite of the fact that they are necessary parties for the proper adjudication of the present complaint. The complainant has not sought the permission of this Hon’ble commission under Section 11(2)(b) of Consumer Protection Act 1986 before instituting the present complaint against the answering opposite party.  The present complaint is not legally maintainable as the same is nothing but just an abuse of process of law. The present complaint is liable to be dismissed under Section 26 of the Consumer Protection Act. Mr. Amit Sharma alleging himself to be the representative of the complainant visited the service centre of the opposite party on 28.4.2017 with the problem symptom program Abnormal Execution and alleged that mobile phone used to be hanged and the opposite party No. 2 repaired the same on the same day and software update was done and closed the case on 28.4.2017 as repaired and called many times to the customer to collect his handset  and after so many calls by the opposite party No. 2, the representative namely Amit Sharma on behalf of complainant collected the repaired handset after his full satisfaction after 6 days i.e. on 3.5.2017 and again he visited the service centre on 22.5.2017 with the problem of no power and at that time even internet was not working and the representative of the customer was escalating to receive the handset and the official of opposite party No. 2 received his handset with manual ELS form and recharge the dead handset as the mobile in question was in dead condition due to use of duplicate charge by the complainant. Again the representative of the complainant approached the opposite party No. 2 on 24.6.2017 and submitted the handset to the opposite party No. 2 with the problem symptom of auto power on/ off. After duly investigating the handset in question by the technician of the opposite party No. 2, the battery of the handset in question was replaced because the complainant used the duplicate charger and also software of the mobile set was again updated and handset in question was in full working condition and it was also checked by the representative of the complainant and he assured the opposite party No. 2 that he will collect the hand set in the evening, but inspite of such assurances he has failed to receive back the said mobile set and rather also stopped to attend the phone calls of the officials of the opposite party No. 2 and rather he has filed this false and frivolous complaint just to cause undue harassment, inconvenience and to blackmail the opposite party No. 2. The complainant has not come to this commission with clean hands and has suppressed the true and material facts from the notice of this commission. The complainant has not set out any legitimate ground entitling him for replacement of mobile phone with demands and litigation cost. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person in support of alleged submission as required under law.  In absence of any expert evidence, the claim cannot be allowed. The complainant claims the said mobile set to be suffering from defects, therefore, it is the legal duty, under the discharge of burden, upon the complainant to establish the same by Technical Expert Report but no such report has been adduced by the complainant till date before this commission, hence in the absence of any such technical report the complaint of the complainant cannot be decided as per provisions of Consumer Protection Act,  1986.  And the opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.

4        Notice was issued to the opposite party No. 1, but the opposite party No. 1 did not appear despite service, therefore, the opposite party No. 1 was proceeded against exparte.

5        To prove the case, Ld. counsel for the complainant has placed on record affidavit of complainant Ex. C-1 alongwith documents i.e. copy of retail invoice dated 12.7.2016 Ex. C-2, copy of Job Sheet dated 1.5.2017 Ex. C-3, copy of Job sheet dated 22.5.2017 Ex. C-4, copy of job sheet dated 24.6.2017 Ex. C-5, and closed the evidence.  On the other hands, Ld. counsel for the opposite party No. 2 has tendered in evidence affidavit of Daljit Singh Ex. OP2/1 and closed the evidence.

6        We have heard the Ld. counsel for the complainant and opposite party No. 2 and have gone through the record on the file.

7        In the present case , the complainant purchased one cell phone model HTC -ONE on 12/07/2016 vide bill no . 35826 of Rs 26000/- from M/S Jai Shankar Telecom . The cell phone was giving problems like hang, restart itself etc. on 26.04.2017 so complainant submitted his cell phone to OP No 2 through his representative on 28.4.2017 for repair under warranty period (Ex. C-3) and OP No 2 assured that they will repair cell phone of complainant within 3 days but O.P No 2 failed to do so. Ultimately OP No 2 returned the cell phone to complainant on 21.05.2017. On same day when complainant checked the cell phone it was again giving the problem and then complainant called helpline number 18002663566 of OP No 1 and they advised him to submit cell phone again to OP No 2. On 22.05.2017 complainant again submitted his cell phone to OP No. 2 (Ex.C-4)and they assured to repair or replace the cell phone in 5 days but again failed to repair the cell phone within 5 days. Ultimately, OP No 2 returned the cell phone to complainant on 25.06.2017. The complainant again submitted his cell phone to OP No.2 on 27.06.2017 (Ex.C-5) with same problems and OP No. 2 assured to complainant cell phone will be repaired or replaced within 7 day. But OP No. 2 again failed to repair or replace the cell phone till date. The O.P No 2 stated in their written version that the representative of the complainant visited the service centre on 28.04.2017 with the problem in the handset and on same day software update was done and closed the case on 28.04.2017 and called many times to the customer to collect his handset and after so many Calls, the representative namely Amit Sharma on behalf of the complainant collected the repaired handset after his full satisfaction after 6 days i.e. 03.05.2017. Again on 22.05.2017 he visited the service centre with the problem of no power and at that time even internet was not working so Oppoiste Party received his handset with manual ELS form and recharge the dead handset as the mobile in question was in dead condition due to use of duplicate charger by the complainant. Later on, the representative of the complainant approached OP and submitted the handset with the problem symptom of auto power on /off . After duly investigating the handset in question by the technician the battery of the handset was replaced because the complainant used the duplicate charger and also software of the mobile was again updated and handset was in full working condition and it was also checked by the representative of the complainant. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of the expert in support of alleged submission as required under law , but in this present complaint the handset in question started giving problem after few months and case of the OP No 2 is that whenever the complainant has complained  to the OP No 2 his complaint was resolved . As an evidence that complainant approached OP NO 2 again and again with same problem attached (Ex.C3 to Ex.C5). On the other hands, it is admitted fact that the complainant is approaching the opposite party No. 2 several times from the very start and the service report and ELS report Ex.C 3 to Ex.C 5 show that there is some problem in the handset from the beginning. The complainant approached the OP No. 2 again and again and after the duly investigation of the handset in question by the technician of the OP, it all shows that there is some inherited defect in the handset in question. The perusal of records shows that defect in the handset in question occurred within one year from purchase of the handset. The defect in the mobile in question occurred within one year i.e. within warranty period and if any defect occurred during the warranty period the same is to be replaced. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

 “when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

 In the instant case, the mobile in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

The opposite party No. 2 has not placed on record any detail of phone calls which were made to complainant to receive the handset in question. Further the opposite party No. 2 has raised the objection that M/s Jai Shankar is not made party in this complaint, but there is no need to implead the same as party because purchase of handset is not in dispute.

8        In view of above discussion, the present complaint is allowed and the opposite parties are directed to replace the mobile in question with same make and model or to refund the price of the mobile in question. The complainant is also entitled to Rs. 5,000/- ( Rs. Five Thousand only) as compensation on account of harassment and mental agony and Rs. 4,000/- (Rs. Four Thousand only) litigation expenses from the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

26.07.2022