Delhi

North East

CC/396/2015

Shri Shashi Bhushan - Complainant(s)

Versus

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

14 Jan 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  396/15

 

In the matter of:

 

	Shri Shashi Bhushan S/o Late Shri Mundrika Singh R/o:- 4649/103, Street no. 4 Shahadara, North East Delhi Delhi-110032	Complainant
	Versus
1       2	M/s. Garhwal Communication D-2, D-3, Main Bhajanpura, Red light Chand Bagh, Delhi-110094   M/s. Micromax Ltd. 288-A, Udyog Vihar Phase IV Gurugram-122015, Harayana	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

09.10.2015 14.01.2020 14.01.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts as culled out by the complainant in the present complaint are that he had purchased a Micromax A350 Mobile phone bearing IMEI no. 911357701736409 manufactured by OP2 from Kohli Tele World on 26.10.2014 for a sum of Rs. 14,400/- inclusive of VAT vide Invoice no. 001765. However, the subject mobile started giving problem after few months of usage pertaining to display touch screen function, and therefore complainant had to submit his handset with OP1 on 19.05.2015 vide job sheet no N031597-0515-16792101 and was assured by OP1 that it shall repair and return the mobile to the complainant within next seven days. However, after seven days when complainant visited OP1, he was given another old mobile set which also gave problem of display flickering. The complainant visited OP1 again on 05.08.2015 and deposited his phone vide job sheet no. N031597-0815-18390343 and was again assured by OP1 to repair and return the handset within a week. However, on complainant’s visits to OP1 after a one week, OP1 did not return the handset to the complainant nor gave any satisfactory response. Therefore, feeling aggrieved at the deficiency of service and selling defective goods by OPs, the complainant was compelled to file the present complaint against OPs praying for issuance of direction for refund of mobile handset price i.e. Rs. 14,400/- alongwtih compensation of Rs. 50,000/- for mental agony and pain and Rs. 10,000/- towards cost of litigation.
2. Complainant has attached copy of purchase invoice, copy of job sheets dated 19.05.2015 and 05.08.2015 issued by OP1.
3. Notice was issued to the OPs on 05.11.2015. Both were served on 18.11.2015 and 21.11.2018 respectively. However, none appeared on behalf of OP1 despite service effected and was therefore proceeded against ex-parte vide order dated 16.02.2016 on which date OP2 appeared and was handed over copy of complainant alongwith annexure for filing written statement.
4. OP2 filed its written statement in which while admitting the factum of purchase of mobile handset in question and its deposit with OP1, its ASC on 19.05.2015 and 05.08.2015, it took the preliminary objection that it was the complainant who failed to collect the repaired handset from OP1 despite several reminder and has filed the present complaint to raise illegal demands and unjust monetary gains as the complainant is not entitled to get any claim or relief. The OP2 objected to maintainability of the complaint on grounds that the complainant has not produced any documentary evidence to prove allege defect in the handset and has rather misused the mobile phone and handed the same carelessly and with negligence. OP2 urged that the subject handset comes with limited warranty and  is repaired “free of charge” only if it is covered under warranty and replacement is limited to only those case where repair is not possible or instrument requiring repeated repairs. The OP2 alleged ambiguity in the complaint and its willingness to perform its obligation under term of warranty for redressal of grievance of the complainant. The OP2 admitted to the complainant having been handed over a SWAP handset by OP1 which was duly accepted by the complainant. Lastly, OP2 defended itself by submitting that OP1 has already repaired the handset as per the warranty but the complainant never collected the same and instead file the present complaint and therefore on defence so taken, OP2 prayed for dismissal of the complaint.
5. Rejoinder in rebuttal to defence taken by the OP2 was filed by the complainant reiterating his grievance of OPs having neglected the complainant by adopting unfair business practice and whimsical attitude and failed to give any satisfactory response despite several visits made by the complainant to OP1. Complainant submitted that the defect in the subject handset first arose in January 2015 and yet again in March 2015 and thereafter in May 2015 when it was deposited with OP1, the service center of OP2 and that the subject handset is lying with OP1 since August 2015 without any redressal of his grievance by OPs.
6. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon by him as Ex1/A to Ex1/D, Ex1/D being copy of personal notice dated 24.08.2015 from complainant to OP2 demanding replacement or refund of the mobile handset in question.
7. Despite several opportunities granted to OP2 to file its evidence, it failed to file the same and therefore opportunity to file evidence qua OP2 was closed vide order dated 08.02.2017.
8. Written arguments were filed by both parties in their reassertion grievance / defence.  
9. We have heard the arguments addressed by the complainant and have perused the documents placed on record by him. It is evident from the same that the subject mobile phone manufactured by OP2 and purchased in  October 2014 started giving problems soon after purchase for which it was deposited several times since January 2015 till last deposited with OP1 by complainant in August 2015 ever since then for last more than four years, none of the OPs have either repaired or responded to the grievance of the complainant and have not even returned the subject handset to him, the same being still under warranty as can be verified from the job sheets. The OP2 have not made any specific rebuttal or given any cogent explanation for recurring defect in the mobile handset in question. Notwithstanding that, it is not in dispute that the subject handset was deposited four times between January 2015 to August 2015 while it was still under warranty. The Hon'ble National Commission in the recent judgment of Samsung India Electronics Pvt. Ltd. & Anr Vs Farooq Khan & Anr IV (2019) CPJ 608 (NC) passed on 02.07.2019 observed that when a person purchases a new mobile set, he expects efficient working of the handset and to repeatedly take the same to repair centres. Thus if the complainant had filed any complaint with OPs for non functioning of mobile handset, OPs were duty bound to rectify the defect as the mobile was under warranty and failing to discharge its duty was deficiency of service.  In view of the aforesaid observations which are squarely applicable to the present case as well as in which the complainant could not use the subject handset to his full satisfaction and enjoyment and had to submit his phone repeatedly for repair and was never returned the handset by OP1 nor the same was replaced or cost refunded thereof by OP2, we hold both OPs guilty of deficiency of service in having sold a defective mobile and failed to repair / replace the same despite it being under warranty and recurring defects arising therein and direct them jointly and severally to refund the cost of the mobile handset i.e   Rs. 14,400/- alongwith compensation of Rs. 5,500/- for mental harassment inclusive of litigations charges. Let the order be complied by OP1 & OP2 within 30 days from the date of receipt of copy of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  14.01.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member