The case of the complainant, in brief, is that complainant purchased one Nokia-N8 mobile set through his friend Biswajit Dutta on 13.11.2017 for a consideration of Rs. 36,990/- from OP No.1, M/S- D.K. Enterprises but unfortunately on 04.05.2018 the said handset got some problems which was within one year period of warranty and for that reason complainant rushed to OP No.1 who advised the complainant to hand over the set to OP No.2, M/S- The Planet, situated near Panitanki more at International Market Complex, within P.S.- Siliguri. The OP No. 2 mentioned specific disorder in the Jobsheet issued to the complainant being Jobsheet No.596504886/180504/004. Thereafter, on 24.05.2018 the complainant was compelled to address in writing to the OP No.2 claiming the damages for not repairing the handset and stating his harassment during those days and also made several correspondence through emails till 31.05.2018 but no result came out. Hence this case has been filed against both the OPs by the
Contd….P/2.
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complainant seeking direction upon the OPs to return the amount of purchase money of Rs. 36,990/- as the taken back handset has not been working and for another amount of Rs. 50,000/- from the OPs on account of mental agony and harassment. The complainant filed some documents along with filing of this case which are mentioned as Annexure- A, B, C & D in Xerox Copies. Annexure-A is tax in voice issued by OP No.1. Annexure-B is the ownership paper with declaration of one Biswajit Dutta in respect of the complainant of this case. Annexure-C is the service jobsheet as said to be issued by OP No.2 and Annexure-D is the letter issued by the complainant to OP No.2 along with postal receipt and other papers which are also there mainly through e-mail addresses.
It appears from the case record that OP No.2 first entered in this case through its one Anup Kumar Bala Customer Care Officer, but no authorization letter produced, opportunities were given but ultimately no steps was there from the part of the OP No.2 and thus statutory period for filing W/V expired and case was fixed for ex-parte hearing against the OP No. 2. It appears further that summon was served upon OP No. 1 but none appeared so the case was fixed for ex-parte hearing against OP No. 1 also.
Thereafter complainant adduced evidence and after considering the evidence and documents the case was dismissed ex-parte without cost. There after complainant preferred first appeal no. FA/57/2019 before the Hon’ble West Bengal State Consumer Disputes Redressal Commission at Siliguri Circuit Bench and Hon’ble State Commission issued the notices upon respondents/OPs after admission of the First Appeal. The OP No. 1 contested the first appeal before Hon’ble state commission but OP No. 2’s appearance could not be secured as service return was found left without address. So complainant as well as respondent No.1 contested the First Appeal before the Hon’ble State commission.
The Hon’ble State Commission after hearing both sides was pleased to allow the appeal on contest and set aside the final order passed by this Commission and case was sent back to this commission to rehear the case after giving the opportunity to respondent no. 1 to contest the case by filing written version within 30 days from the date of receiving the copy of Order of Appeal. The liberty was given to the complainant to adduce evidence of Biswajit Dutta and also allow both parties giving them opportunity to place their case before this commission.
Later OP No. 1 filed his written version and complainant produced witness Biswajit Dutta before this commission to adduce evidence and thereafter OP No. 1 also adduced evidence and argument was heard from both sides.
Contd….P/3.
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After considering the complaint, written version and evidences following points are required to be considered:
POINTS FOR CONSIDERATIONS
- Is the complainant a consumer under the Consumer Protection Act 1986?
- Is there any deficiency in service and unfair trade practice by Opposite parties as alleged by complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
All the above mentioned three points are taken up together for convenience and to avoid repetitions.
The word consumer has been defined in section 2(d) of the Consumer Protection Act, which reads as follows:
- Consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promise, or under any system of deferred payment and includes any user of such goods other than the person who buys such good 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.
If this definition of Consumer is considered with the allegations and evidence of complainant then it appears one Biswajit Dutta has purchased Mobile set Nokia- N8 on 13.11.2017 for complainant and has paid an amount of Rs. 36,990/- including GSTs. Later on 14.11.2017 Biswajit Dutta has given a declaration that Amrit Podder (complainant) of this case has paid him money to buy the mobile set Nokia N8 on 13.11.2017. He purchased the said mobile set but by mistake he registered the bill in his name. Amrit Podder is the authorized owner of above said Mobile and use the same.
Further the allegations show that the aforesaid mentioned mobile set became defective and complainant being the user approached before the OP No.1 to remove defects of the mobile handset. Name of complainant has been entered as customer name as per Annexure-C and this annexure shows the defect was in camera and to remove this defect OP no. 1 advised to place the set with OP No. 2 to repair the same who issued a job sheet which is Annexure-C.
In evidence complainant has stated that his friend Biswajit
Contd….P/4.
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Dutta has purchased one Nokia N8 and handed the set to him. Biswajit Dutta also adduced evidence as PW-2 and has specially stated that his friend Amrit Podder who is the complainant of the case has purchased a phone through him but by mistake his name was placed in invoice memo and he has given a declaration to this effect also and actual owner is Amrit Podder. He has not been cross examined at any places to show that his evidence is false on this point.
So, Biswajit Dutta has purchased the above mentioned Nokia Mobile Phone for use of complainant and complainant has paid the purchase amount and as per definition of consumer under C.P. Act, this complainant, Amrit Podder, is a consumer.
Now let us see whether there is deficiency in service and unfair trade practice upon complainant by the OPs. It is evidence of complainant that his handset got problem on 04.05.2018 and he rushed to OP No.1 who advised him to handover the set to OP No. 2 who issued job Sheet i.e. Annexure-C. From the documents filed it appears there were several conversations by OP No. 2 with his superiors and defect was pointed out but it could not be rectified that camera will function normally. The complainant also sent emails and at last he was informed that his phone is not defective and there is no problem and it is in all the phoned due to radiation. This shows complainant became annoyed and sent letter to deliver the new set in place of old set of Nokia N8 and if not then he has no other option but to claim amount of mobile set as well as compensation, but his grievance was not met nor handset was returned to him.
The OP No. 1 has disputed only that complainant is not a consumer, so he is not entitled to receive any amount from him and case against him should be dismissed. However, he has admitted that when Nokia N8 handset was shown to him then he advised complainant to hand over the handset to M/s Planet i.d. OP No. 2 who is service center for Nokia and handset was within warranty period. He is just a reseller not a service center.
From the evidence of OP No. 1 it is crystal clear that he is the seller of the concerned mobile and OP no. 2 is a service center and both have failed to discharge their duty to fulfill the claim of the complainant and as the mobile set was within the warranty period then liability goes upon OP No. 1 being a seller and also upon OP No. 2 who is a service center and has not rectified the defects and illegally has detain the handset. It is very strange also that mobile set has not been return to complainant, so the complainant has rushed before this commission by filing the case. The conduct of OPs shows that there is deficiency in service on their part and by not providing new set or return of money to the
Contd….P/5.
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complainant for defective set nor repairing the defective set clearly indicates for unfair trade practice on their part. So there is deficiency in service and unfair trade practice on the parts of OPs.
So far as relief claimed by complainant is considered, complainant has claimed for return for amount of Rs. 36,990/- which was the price of the handset and further Rs. 50,000/- for his mental agony and harassment. As this commission finds that handset was defective and has not been returned, so claim for amount of Rs. 36,990/- which is value of the handset mobile Nokia N8 is to be provided to complainant. Further complainant filed this case on 25.06.2018 and till date he has not got his mobile and has suffered mental pain and agony, so at least he should get Rs. 40,000/- for his sufferings and also litigation costs of Rs. 10,000/- from both OPs.
In the result this commission finds that complainant has been able to prove his case and is entitled for the reliefs as mentioned above.
Hence, it is, ordered,
That the Consumer Case being No. 64/S/2018 be and the same is allowed on contest against OP No. 1 and Ex-parte against OP No.2.
The complainant is entitled for Rs. 36,990/-(Thirty six thousand nine hundred and ninety rupees) for purchase value of Nokia N8 Mobile set from the Ops.
The complainant is further entitled to receive Rs. 40,000/-(Forty thousand rupees) as compensation for metal agony and harassment from the OPs.
The complainant is further entitled for litigation costs of Rs. 10,000/-(Ten thousand rupees) for proceeding of this complaint.
Thus OP No. 1 Mrs. D.K. Enterprises, situated at Haren Mukherjee Road, Hakim Para P.O. & P.S. Siliguri Dist. Darjeeling and OP No. 2 M/S. The Planet situated at international market shop no. 2 (near Panitanki More, Sevoke Road, P.O. & P.S. Siliguri, Dist. Darjeeling) are directed to pay the amount of Rs. 86,990/- (Eighty six thousand nine hundred and ninety rupees) in total to the complainant within 45 days from the date of this order and in default the complainant shall be at liberty to take necessary steps for realization of above mentioned amount after 45 days and OPs shall further pay interest @10% per annum thereon from the date of filing of this case till the date of realization.
Let a copy of this final order/judgment be given to parties free of cost at once.
