Haryana

Panchkula

CC/45/2015

SANDEEP SINGH. - Complainant(s)

Versus

M/S AJAY ENTERPRISES. - Opp.Party(s)

COMPLAINANT IN PERSON.

03 Sep 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                   

Consumer Complaint No	:	45 of 2015
Date of Institution	:	04.03.2015
Date of Decision	:	03.09.2015

Sandeep Singh s/o Sh.Phool Singh, R/o H.No.1266, FF, Sector-26, Panchkula.

                                                                                       ….Complainant

Versus

1.       M/s Ajay Enterprises, Booth No.11, Sector-11, Panchkula through its proprietor.

2.       Telesphere (164_433527), SCO No.38, Sector-11, Chandigarh (service center of Nokia mobiles) through its authorized signatory.

3.       Nokia Inida Pvt. Ltd. S.P.Info City, Industrial Plot No.243, Udyog Vihar, Phase I, Dundhera, Gurgaon-122016 through its Care Manager.

                                                                         ...Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person. 

                             None for the Op No.1.

                             Mr.Parmod Bali, Adv., for the Op No.2.

                             OP No.3 already ex-parte.

 

ORDER

(Dharam Pal, President)

1. Sandeep Singh-complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he purchased a Nokia mobile Model 630ds (Black), Duel Sim vide IMEI Nos.352381066421502 & 352381066421510 on 06.12.2014 (Annexure C-2) from the OP No.1 for an amount of Rs.8050/- with a warranty of one year. The complainant purchased the mobile for gift to her niece Neha. At the time of purchase of the mobile handset, the OP No.1 assured the complainant that the set was all right and it would work effectively. But within a week the mobile set started giving problems i.e. display problem and the picture quality was very poor. The complainant approached the OP No.1 who advised him to approach the OP No.2 for repair. The complainant asked the OP No.1 to replace the mobile phone as his phone has manufacturing defect but he refused to replace the same. Thereafter, the brother of the complainant namely Vicky Answal approached the OP No.2 and the Op No.2 stated that the problem in mobile phone was a serious one and it would take some time for its repair as they have to order for new display and camera to replace the defaulted one. On 25.12.2015, the complainant approached the OP No.2 and gave him job sheet. The OP No.2 handed over the mobile phone to the complainant and asked him that the phone was fully repaired. The complainant came back & checked his phone properly and was surprised to see that the photo quality of the phone was still very poor. On 26.12.2014, the complainant again approached the office of Op No.2 and told him about the fault in camera. The concerned person of OP No.2 took the phone and assured him that it would be repaired within 15 days. After 15 days, when the complainant approached the Op No.2 for taking the delivery of his handset, they tried to give him back the unrepaired mobile phone but the complainant refused to take it back as it was not repaired and the display of the phone was also damaged at that time. The complainant sent many emails on the customer care number of OP No.3 but to no avail. The complainant alleging gross negligence and deficiency in service on the part of Ops, filed the consumer complaint in question with the following prayer:-

“i)      To make the payment of the handset of Rs.8050/- as the phone in question is non repairable.

ii)      Damages to the tune of Rs.80,000/- for physical harassment and for causing mental tension, harassment and mental agony to the complainant.

iii)     To pay Rs.11,000/- towards cost of litigation.”

2. In reply, the OP No.1 filed reply by taking some preliminary objections and submitted that the Op No.1 is in the retail business of mobile handsets from the last 14 years and running his business in Booth No.11, Sector-11, Panchkula under the name and style of M/s Ajay Enterprises. It is submitted that the Op No.1 is also an authorized dealer of Nokia India Pvt. Ltd. mobile company for selling its mobile handsets at his outlets. It is submitted that the OP No.1 has earned the good reputation in his business and has a great customer base. It is submitted that the complainant has purchased a mobile handset of Nokia Company, model 630ds (Black) from the outlet of Op No.1 for an amount of Rs.8050/-. It is submitted that at the time of purchase of mobile, it was in a sealed box. It is submitted that being the dealer of the company, the Op No.1 had sold the mobile handset to the complainant and had performed his duties. It is submitted that after few days of its purchase, the complainant approached the OP No.1 who advised him to approach the authorized service center i.e. OP No.2 as the Op No.2 had provided the after sale service to the esteem customers of the company. Thus, there is no deficiency in service, unfair trade practice on the part of the OP No.1 and prayed for dismissal of the complaint.
3. In reply, the OP No.2 filed reply by taking some preliminary objections and submitted that the complainant purchased the mobile handset from the Op No.1 and as per Annexure C-1, the complainant is not the owner of the mobile handset in question and also not a consumer under the definition of consumer. It is submitted that the complainant never approached the OP No.2 with any complaint. It is submitted that after checking the mobile handset, it was found that the mobile handset was working efficiently. It is submitted that one Vicky Answal visited the OP No.2 and got deposited the handset and the OP No.2 also issued job sheet to him. Thereafter, Vicky Answal never visited again to take the delivery of the mobile handset. It is submitted that when no relation of consumer and service provider existed between the complainant and OP No.2 then the alleged efforts of the complainant did not arise at all. Thus, there is no deficiency in service on the part of the OP No.2 and prayed for dismissal of the complaint.
4. Notice was issued to the Op No.3 through registered post and the same has not been received back served or unserved. It is deemed to be served and the OP No.3 proceeded against ex-parte vide order dated 16.04.2015.
5. We have heard the complainant appearing in person and learned counsel for the Op No.2 and have also perused the file carefully and minutely.
6. After hearing the complainant, learned counsel for the OP No.2 and going through the record available on the case file, the complainant in his complaint has mentioned that he has purchased a Nokia mobile handset from the Op No.1 for an amount of Rs.8050/- for gift to her niece Neha. From the perusal of the bill (Annexure C-2), it reveals that the mobile was purchased by Neha not by the complainant. We are of the considered opinion that the complainant is not a “consumer” of the services of the opposite parties within meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986 & whether the dispute between the parties constitutes a “consumer dispute” within the meaning of the terms defined in the aforesaid Act as the bill was issued in the name of Neha.   
7. Section 2 of the Consumer Protection Act, 1986, dealing with definitions in clause (d) defines a ‘consumer’ as under:

“(d) ‘Consumer’ means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

     Explanation- For the purposes of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”          (Emphasis added)

8. Hence, in view of above discussed factual as well as legal position, we are of the considered view that the complainant is not a consumer. Hence, the present complaint is hereby dismissed, leaving the parties to bear their own costs.
9. A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced      (S.P.Attri)                 (Anita Kapoor)          (Dharam Pal)

03.09.2015       Member                             Member                       President

Note: Each and every page of this order has been duly signed by me.                

 

                                                          Dharam Pal                                                                                                President