Haryana

Yamunanagar

CC/352/2013

Raghav Mehta S/o Om Parkash Mehta - Complainant(s)

Versus

M/s Bhalla Communication - Opp.Party(s)

None

21 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                             Complaint No. 352 of 2013.

                                                                                             Date of institution: 7.5.2013

                                                                                             Date of decision: 21.10.2015.

Raghav Mehta aged about 25 years son of Sh. Om Parkash Mehta, resident of village Bakana, Sub Tehsil Radaur, Tehsil Jagadhri, District Yamuna Nagar.                                                                                                                                                                                                                                                                                                                                          …Complainant.

                                    Versus

 

M/s Bhalla Communications 1^st Floor, Opp. Bank of Baroda, Fountain Chowk, Yamuna Nagar through its Proprietor.                                                                                                                                                                                                                                                                                                                                             …opposite party.

 

Before:            SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:  Sh. Sachin Bhardwaj, Advocate, counsel for complainant.   

                OP already ex-parte.          

             

ORDER

 

1.                     Complainant Sh. Raghav Mehta has filed the present complaint under section 12 of the Consumer Protection Act. 1986, praying therein that respondent      ( hereinafter referred as OP) be directed to replace the mobile with new one and further to pay Rs. 50,000/- as compensation for mental agony and harassment alongwith cost of proceedings Rs. 5000/-.  

2.                     Brief facts of the complaint, as alleged by the complainant, are that the complainant purchased one Mobile Nokia Lumia 710, bearing IMEI No. 359300041300709 on 7.3.2012 for an amount of Rs. 15,300/-  vide cash receipt/Bill No. 8915 dated 7.3.2012. As such there exist a relationship of consumer and supplier between the parties. It has been further alleged that after purchasing the same, the complainant brought the said mobile phone to his house and when he opened the box of the said mobile phone, the complainant was astonished to see that an another bill No. 8783 dated 1.3.2012 was lying in the said box and found that the said bill was in the name of one Dilshad and was of the same mobile which was purchased by complainant from OP. After coming to know the said fact, the complainant immediately approached the OP and asked the OP that why he has sold him the second hand mobile set whereas he has paid the amount of new mobile set and requested him to change the same with new mobile set of the same brand but he flatly refused to replace the mobile set. The complainant got served a registered AD legal notice through his counsel and the said notice was received by the OP and in reply to the said notice, the OP admitted his guilt while stated other facts falsely. However, the OP telephonically called the complainant and told that he is ready to replace the said defective mobile set with new one and the complainant can get new mobile set within a week. After a week when the complainant went to the shop of OP, the OP told the complainant that whenever complainant wants to replace the said mobile set with new one the complainant can get new mobile set. Thereafter, the complainant who is working in Delhi went Delhi and  when he again contacted the OP in the last week then OP flatly refused to replace the defective mobile set. Hence this complaint.

3.                     Upon notice, Sh. Naresh Bhalla Proprietor of OP Firm appeared in person on 9.7.2014 and case was adjourned for 7.8.2014 for filing written statement but on 7.8.2014 none has appeared on behalf of OP hence he was proceeded ex-parte vide order dated 7.8.2014.

4.                     To prove the case, counsel for complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Photo copy of bill dated 1.3.2012 as Annexure C-1, Photo copy of another bill dated 7.3.2012 as Annexure C-2, Photo copy of registered AD legal notice dated 12.2.2012 as Annexure C-3, Photo copy of postal receipt as Annexure C-4. Acknowledgement as Annexure C-5 and copy of reply of legal notice dated 15.3.2012 and closed the evidence on behalf of complainant.

5.                     We have heard the learned counsel for the complainant and have gone through the pleadings as well as documents placed on file carefully and minutely.

6.                     It is not disputed that the complainant had purchased a mobile set Nokia Lumia 710 with IMEI No. 359300041300709 for a sum of Rs. 15,300/-  vide Bill No. 8915 dated 7.3.2012 (Annexure C-2) from the OP. The only plea of the complainant is that when he opened the box of the said mobile phone at his home after purchasing the same from OP, he was astonished to see that an another bill bearing No. 8783 dated 1.3.2012 ( Annexure C-1) in the name of Dilshad for the same model which was purchased by complainant from OP was lying in the said box. It has been further stated that when he switched on the said mobile then he found that photos of some unknown persons was in the said mobile set. It means the mobile set in question was second hand defective mobile which was not working properly. It has been further stated that despite many requests the OPs failed to replace the same with new one but the OP flatly refused to do so. Ultimately, a legal notice dated 12.3.2012 was also issued. Copy of which is Annexure C-3 and lastly prayed that OP be directed to replace the mobile set in question with new one and complaint may kindly be accepted.

7.                     After hearing the counsel for the complainant, we are of the considered view that complainant has totally failed to point out any manufacturing defect in the mobile set purchased by the complainant, even the complainant has failed to file any job sheet vide which he ever approached to the service centre of the manufacturing company in question. Further the complainant has not made the party to the manufacturer in the present complaint. It means that the grievance of the complainant is only against the OP. If there was any manufacturing defect in the mobile set in question, then the complainant might have impleaded the manufacturer as well as service centre of the mobile set in question. Moreover, the present complaint has been filed by the complainant on 7.5.2013 i.e. after a period of approximately one year two months whereas the legal notice was served by the complainant on 12.3.2012. Furthermore when the complainant noticed at initial stage that mobile set in question was not working properly and was having manufacturing defect then why he kept mum for a period of more than one year and two months. The present complaint has been filed by the complainant after the expiry of warranty period of one year (if any). Even neither the complainant has filed any expert report/mechanic report showing any defect in the mobile in question nor the complainant has disclosed in his complaint or by way of evidence that what type of defect was found by him in the mobile in question. The complainant has not lodged any complaint on the toll free number of the Service Centre or the company, even, the complainant has not mentioned any complaint number lodged with the company or service centre on the toll free number. Moreover, the complainant has also specifically mentioned in his legal notice that the OP has cheated and defrauded with the complainant and he is going to initiate criminal proceedings under section 420/467/468 and 471 IPC.

8                 Though in the present complaint, the OP has not appeared before this Forum and also not joined the proceedings, but it does not give any right to the complainant to take the benefit of this, as it is well settled law that the complainant has to stand on its own legs without taking the benefits weakness of other party. 

9.                     After going through the above noted facts we are of the considered view that the arguments advanced by the counsel for the complainant on the point that mobile in question was having any manufacturing defect and the complainant is entitled to get the replacement with new one is not tenable. Hence, the complainant is not entitled to get any replacement of mobile set with new one.

10.                   However from the perusal of Annexure C-1 and C-2 the 2^nd contention of the complainant that the OP has sold him second hand mobile vide bill No. 8915 dated 7.3.2012 Annexure C-2 whereas the said mobile set was earlier sold to one Dilshad vide Bill No. 8783 dated 1.3.2012 (Annexure C-1) i.e. 6 days ago seems to be correct as the OP has neither rebutted the version of the complainant nor has tried to file any explanation by way of written statement or affidavits, even not bothered to contest the complaint despite he appeared in person on one date only before this Forum and lateron remained ex-parte. Even the Op has admitted his guilt in his reply of Legal Notice send through Sh. Surbhit Verma Advocate on dated 15.3.2012. So, we are of the considered view that OP has sold second hand mobile i.e. (6 days) used mobile to the complainant which constituted unfair trade practice on the part of OP.

11.                   Resultantly, we partly allow the complaint of complainant and direct the OP to pay Rs. 1000/- as compensation on account of mental agony, harassment and further to pay Rs. 500/- as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which the complainant shall be at liberty to initiate action as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 21.10.2015.

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                     

                                                                                    (S.C.SHARMA )

                                                                                     MEMBER.