DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 267 of 10.09.2007<br /> Decided on : 03-01-2008 <br /> <br /> Vijay Kumar S/o Sh. Des Raj, aged about 35 years owner of Sidhu Mobile Zone R/o Village Bhagta Bhai Ka, District Bathinda. <br /> ... Complainant<br /> Versus<br /> 1.M/s. Goyal General Store, Near Bus Stand, Bhagta Bhai Ka, Tehsil Phul, District Bathinda through its Prop./Partner.<br /> 2.Neuron Technologies, Hanuman Chowk, Bathinda (Service Care Centre of Nokia), through its Partner/Prop./Manager.<br /> 3.NOKIA INDIA PVT. LTD. 2nd Floor, Radisson hotel, Commercial Plaza NH-8, Mahipalpur, New Delhi-37 through its Managing Director/Chairman. ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. K S. Brar, Counsel.<br /> For the Opposite party : Opposite party No. 1 exparte.<br /> Sh. G.S. Bhasin, Counsel for opposite<br /> party No. 2. <br /> Sh. Sukhdev Mittal, Counsel for opposite party No. 3. <br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Complainant had purchased one Mobile Hand Set make Nokia 6233 (12345) for Rs. 9029/- from opposite party No. 1 for his personal use. Bill No. 747 dated 26.6.07 was issued. Opposite party No. 2 is the authorised service Centre of Nokia Mobile Hand sets whereas opposite party No. 3 is the manufacturing Company. No IMEI Number of the mobile hand set was mentioned on the Invoice/Bill. Tall claims were made by opposite party No. 1 about the quality of this mobile hand set saying that it is one of the top most model and is free from all types of defects and that it would give good performance. He was further assured that in case any defect creeps in it, it would be rectified within no time and that in case defect is not removed, the set would be replaced with a new one. Warranty of one year was given on the set. After 5-6 days after its purchase, it started giving trouble of re-booting/restarting. Opposite party No. 1 was contacted by him which kept the set with it saying that the defect would be got removed from opposite party No. 2. He (complainant) was told to come after a week. Set was sent by opposite party No. 1 through Mr. Manish to opposite party No. 2. Job Sheet, if any prepared, was not issued to him. He was continuously visiting opposite party No. 1 to collect the mobile hand set after its repair. Ultimately set was received by him on 10.8.07 after its alleged repair after a period of 1-1/4 months. He found that earlier defects were still persisting. Apart from this, Camera had also stopped functioning. On 11.8.07, he (complainant) again visited opposite party No. 1 and apprised it of the defects. It kept the set with it for getting the same repaired from the Service Care Centre. Set was sent to opposite party No. 2 through Mr. Manish. Job Sheet dated 22.8.07 was prepared by opposite party No. 2. It was found that there was defect of power fail, restarting/rebooting and Camera. Since then mobile hand set is lying with opposite party No. 2. He continued visiting opposite party No. 2, but the hand set has not been delivered to him. He was intimated that set is not repairable as there is some manufacturing defect in it. Request was made by him to replace it with a new one, but opposite party No. 2 refused to accede to it and further told him that it is the duty of the opposite party No. 1 or 3 to replace it with a new one. Opposite party No. 1 was requested either to repair the set or replace it with a new one, but to no effect. Complainant alleges that he has been undergoing mental tension, agony, loss of reputation and monetary loss due to the act and conduct of the opposite parties. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred seeking direction from this Forum to replace the mobile hand set with a new one or in the alternative to refund its price alongwith interest @18% P.A. from the date of purchase till refund; pay Rs.50,000/- as damages on account of mental tension, agony loss of reputation and monetary loss and Rs. 5500/- as litigation expenses.<br /> 2. Registered A.D. post notice was issued to opposite party No. 1 on 25.9.07. Neither registered cover nor A.D. was received till 25.10.07. It being so, opposite party No. 1 was deemed to have been duly served. No-one came present on its behalf. Accordingly, it has been proceeded against exparte.<br /> 3. Opposite party No. 2 filed its version taking legal objections that complaint is not maintainable in the present form; complainant has not come with clean hands and complaint is false and frivolous. It admits that it is the authorised centre of opposite party No. 3. Inter-alia its plea is that it has offered new mobile hand set with open box as replacement on the last date of hearing but complainant insisted for refund of the price of the mobile hand set. It denies the remaining averments in the complaint.<br /> 4. Opposite party No. 3 filed separate reply stating that complaint is gross abuse of process of law. Product is governed by the terms and conditions of the warranty. Hand set can be replaced only if it is covered by the Warranty. Opposite party No. 2 was always ready and willing to carry out the repairs. Claim for defect must be proved by documentary evidence showing that defect has occurred during warranty period and is covered by the maintenance contract. Complainant has made an attempt to deceive and mis-guide this Forum by fabricating the facts. Complaint is false, frivolous and ambiguous. If hand set suffers from defect covered under the limited warranty which occurs during the validity of warranty period and such defect is beyond repair, then in such a rare event, the defective part is replaced and/or hand set is replaced by another hand set of the same model to avoid any inconvenience or loss to the customer. Complainant has not disclosed as to how the hand set has become defective. It does not deny the purchase of the mobile hand set by the complainant from opposite party No. 1 and warranty of one year on it. Complainant while receiving the hand set after repairs done by opposite party No. 2, had accorded due satisfaction with respect to repair work carried out. It denies the remaining averments in the complaint.<br /> 5. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of Retail Invoice (Ex. C-2) and photocopy of Service Job Sheet (Ex. C-3).<br /> 6. In rebuttal, on behalf of opposite party No. 2 affidavit of its Prop. Sh. Swadesh Goyal (Ex. R-1) has been produced in evidence.<br /> 7. We have heard learned counsel for the parties. Besides this, we have gone through the record. <br /> 8. Material question for determination is as to whether the mobile hand set purchased by the complainant vide Retail Invoice, copy of which is Ex. C-2 is repairable or not ?<br /> 9. Contention of the learned counsel for the complainant is that the set had become defective after 5-6 days after the date of its purchase. Thereafter it was taken to opposite party No. 1 which had sent it to opposite party No. 2. Set was returned on 10.8.07 after alleged repairs after a period of more than 1-1/4 months. It was found by the complainant that previous defects were still persisting. Apart from this, Camera of the mobile hand set was not functioning. Matter was brought to the notice of opposite party No. 1 on 11.8.07 and it had sent it to opposite party No. 2 on 228.07 and opposite party No. 2 had issued Service Job Sheet, copy of which is Ex. C-3. Opposite party No. 2 found “Power: Phone restarts/reboots, Camera; No functionality Transceiver.” Thereafter set has not been returned after repairs to the complainant despite repeated visits.<br /> 10. Learned counsel for opposite parties No. 2 & 3 argued that new mobile hand set was offered to the complainant but he has not received it and even today, they (counsel for opposite parties No. 2 & 3 ) have made statement giving offer to replace the hand set with a new mobile hand set made Nokia 6233 with one year warranty on the new mobile hand set from the date it is received but complainant has not accepted this offer as is evident from the statement of his counsel made today and as such, there is no deficiency in service on the part of the opposite parties.<br /> 11. We have considered the respective arguments.<br /> 12. Complainant has reiterated his version in his affidavit Ex. C-1. Mobile hand set was purchased on 26.6.07. After 5-6 days, it had gone out of order. It was taken to opposite party No. 1 and was returned on 10.8.07 i.e. after 1-1/4 months saying that it has been repaired. Defects were still persisting. Rather another defect crept in it as Camera had stopped its functioning. As is clear from Ex. C-1 set was taken to opposite party No. 1 on 11.8.07. It was kept by it and was sent to opposite party No. 2 on 22.8.07. This is corroborated from the Service Job Sheet dated 22.8.07, copy of which is Ex. C-3. It is not the case of the opposite parties that after set was received on 22.8.07 it has been repaired. Facts that set has not been repaired till date and opposite parties No. 2 & 3 have given offer to replace it with a brand new mobile hand set, go to show that set purchased by the complainant on 26.6.07 has become irreparable. Had it not become irreparable, there was no necessity for opposite parties No. 2 & 3 to give such offer. Offer has been given after the Institution of the complaint. Set could be replaced by the opposite parties immediately after 22.8.07 when it could not be repaired or in the alternative its price could be paid. Mere fact that complainant has not accepted the offer of opposite parties No. 2 & 3 without cost and compensation, is no ground to hold that there is no deficiency in service on the part of the opposite parties. Opposite parties were required to repair the set as per terms and conditions of the warranty and if it was irrepairable, to replace it within the period of warranty. Since they did not repair it within reasonable time after 22.8.07 and complainant has to file this complaint after undergoing mental tension, agony and loss of reputation, deficiency in service on the part of the opposite parties is established.<br /> 13. Now question arises as to which relief should be accorded to the complainant. Opposite parties No. 2 & 3 have given offer to replace the mobile hand set with a brand new hand set with warranty of one year on the new mobile hand set. Relief claimed by the complainant is also for replacement of the mobile hand set with a new one and in the alternative for refund of the price alongwith interest. Since complainant wants replacement of the mobile hand set with a new one as principal relief, direction deserves to be given to opposite parties No. 2 & 3 to do it as per their offer. Complainant had purchased the mobile hand set on 26.6.07. After 5-6 days, it has gone out of order. Now the mobile hand set is with opposite party No. 2. He has been deprived of its use as it could not be made defects free. Offer to replace it with a new one has been given after Institution of the complaint. In these circumstances, complainant deserves some compensation from the opposite parties which we assess as Rs. 1,000/-.<br /> 14. No other point was urged before us at the time of arguments.<br /> In the result, complaint is allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> i)Opposite parties No. 2 & 3 to replace the mobile hand set purchased by the complainant vide Bill No. 747 dated 26.6.07 with a brand new mobile hand set Nokia 6233 with one year warranty on it, within one month from the date of receipt of copy of this order.<br /> ii)Opposite parties to pay Rs. 1,000/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> Compliance regarding payment of cost and compensation be made within 30 days from the date of receipt of copy of this order failing which the amount of compensation would carry interest @ 9% P.A. till realisation.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned.<br /> Pronounced :<br /> 03-01-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member