DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 146 of 4.6.2007<br /> Decided on : 14.9.2007 <br /> <br /> Amrik Singh S/o Sh. Baldev Singh Kamal, R/o H. No. 19201, Street No. 7, Guru Teg Bahadur Nagar, Opp. D.A.V. College, Bathinda. <br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. M/s. Jaura Stablizers (New Name) and old name Aliza Communications, Near Imperial Motors, Street No. 6, Nai Basti, Bathinda through its Partner/Proprietor.<br /> 2. Neuron Technologies, Near Old Bus Stand, Opp. Hanuman Chowk, G.T. Road Bathinda through its Proprietor/Partner.<br /> 3. Nokia India Pvt. Ltd., Raddison Hotel, Commercial Palaza, N.H. Mahipalpur, New Delhi-110037.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Lalit Garg, Advocate<br /> For the opposite parties : Sh. Tarlochan Singh, Proprietor of opposite party No.1 in person. <br /> : Sh. G.S. Bhasin, counsel for opposite party No.2 & 3<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. One mobile handset make Nokia 6680, having IMEI No. 355664006873099 was purchased by Dr. Tej Paul Singh Wadi of Wadi Hospital, Bathinda for a sum of Rs. 14,450/- from opposite party No. 1 which was earlier running its business under the name and style of M/s. Aliza Communications, Bathinda at that time. Opposite party No.1 is the authorised dealer, whereas opposite party No.2 is the authorised service centre of opposite party No. 3 which is manufacturer. Bill No. 315 dated 7.6.2006 was issued by opposite party No. 1. One year guarantee on the mobile handset was given. On 7.7.2006, Dr. Tej Paul Singh sold this mobile handset to the complainant against consideration. There was writing to this effect. In this manner, complainant alleges that he is consumer of the opposite parties as he has stepped into the shoes of the purchaser. He started using the set. It started creating problems in its functioning. Opposite party No. 1 was approached which directed him to contact opposite party No.2. Accordingly, he paid visit to opposite party No. 2 on 25.4.2007 and explained the problem in the set “after 1 call, no call in and out”. Opposite party No.2 suggested him to leave the mobile handset with it and to collect the same on 26.4.2007. Job Sheet No. 068343506/070425/57 dated 25.4.2007 was issued. Set was delivered on 26.4.2007 after repairs with the assurance that there will be no complaint in future. It started giving the problem on the next date. On 28.4.2007, it became hang. He again approached opposite party No. 2 from where Job Sheet No. 2085 dated 28.4.2007 was issued. Set was kept for repairs. Complainant was directed to come on 29.4.2007. On that day, set was returned with the assurance that defect was removed. Infact, defect was not properly removed due to which it again became hang on 2.5.2007. He again contacted opposite party No.2 and the set was kept by the officials of opposite party No. 2 on 2.5.2007 for repairs vide Job Sheet No. 068343506/070502/65. Complainant was told to come on 3.5.2007 on which date set was handed over to him after repairs. It was not properly repaired. It did not work properly even for a single day. On 15.5.2007, it again went out of order. He paid visit to the office of opposite party No.2 on that day i.e. 15.5.2007 and made request for repairing it properly as it was creating continuous problems. He was advised to leave the set. Accordingly, he left the set with opposite party No.2 vide Job Sheet No. 068343506/070515/12. He was told to come on 16.5.2007. Accordingly, he approached opposite party No.2, but set was not returned representing that same was sent to Chandigarh. He was asked to come after 2 days. He paid visit to the office of opposite party No.2 on 18.5.2007, but set was not returned. Thereafter, he is daily visiting opposite party No.2, but set has not been returned nor has it been repaired. Request was made by him to opposite parties No. 1 & 2 to provide standby set/swap set in the meantime, but to no effect. He alleges that mobile handset is still in possession of the opposite parties. Request was made by him to replace it with a new one as it is well within the guarantee period and is not repairable due to technical/manufacturing defects, but to no effect. In these circumstances, he alleges deficiency in service and unfair trade practice on the part of the opposite parties. According to him, act and conduct of the opposite parties has caused him mental tension, agony, botheration, harassment and humiliation. Hence instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to replace the mobile handset with a new one; pay RS. 20,000/- as compensation and Rs. 3,300/- as costs.<br /> 2. Opposite party No.1 filed its version stating that it is a firm and is selling Nokia mobiles. Liabilities regarding warranty are of opposite parties No. 2 & 3. Complainant had purchased Nokia mobile handset 6680. It is the duty of opposite parties No. 2 & 3 to remove all kinds of defects. It is not responsible for causing mental tension, agony and harassment. There is no deficiency in service on its part.<br /> 3. Opposite party No. 2 filed reply of the complaint taking legal objections that complaint is not maintainable in the present form; it is based on incorrect facts and is bad for non-joinder of Dr. Tejpal Singh Wadi as party. It admits that handset was first time received by it on 25.4.2007 with reported fault of “after 1 call no call in and out”. It was rectified free of cost and set was handed over to the complainant on 26.4.2007. Handset was again received on 2.5.07 with reported fault of hang which is minor software problem and handset was delivered to the complainant at the same time. Complainant had again come on 15.5.2007 with reported fault of hang. Handset was sent to its level 3 service centre i.e. HCL Info System Ltd., Chandigarh on 17.5.2007 which was received back vide challan No. 2300047062 on 23.5.2007. Complainant had come to its office on 23.5.2007, but he had refused to take the delivery. He was insisting to take a new handset. Handset was left by him on the table. There is no provision to provide standby set. It denies the remaining averments in the complaint.<br /> 4. Sh. G.S. Bhasin, Advocate is appearing for opposite party No.3. Opposite party No.3 could not file the reply of the complaint despite opportunities granted to it. Accordingly, its defence was struck off vide order dated 31.8.2007. <br /> 5. In support of his allegations and averments in the complaint, Amrik Singh complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.2), photocopies of service job sheets (Ex.C.3 to Ex.C.6), photocopy of certificate (Ex.C.7) and photocopy of invoice (Ex.C.8). <br /> 6. On behalf of opposite parties No. 1 & 2, reliance has been placed on affidavits (Ex.R.1 & Ex.R.2) of S/Sh. Tarlochan Singh Jaura, Proprietor of opposite party No.1 and Swadesh Goyal, Proprietor of opposite party No.2 respectively and photocopies of delivery challans (Ex.R.3 & Ex. R.4).<br /> 7. We have heard the learned counsel for the parties. Apart from this, we have gone through the record.<br /> 8. Some facts become undisputed in this case. They are that Nokia mobile handset 6680 was originally purchased by Dr. Tejpal Singh Wadi vide invoice dated 7.6.2006, copy of which is Ex.C.8. Complainant purchased it from him on 7.7.2006 as is evident from the certificate issued by him (Dr. Tejpal Singh Wadi), copy of which is Ex.C.7. Set had gone out of order. It was first time taken to opposite party No.2 which is the service centre of opposite party No.3 on 25.4.2007 with reported fault of “after 1 call no call in and out”. Target delivery date was 26.4.2007 as is evident from the copy of the job sheet Ex.C.3. As per admission of opposite party No.2, mobile handset was again brought to it on 2.5.2007 and 15.5.2007. This also becomes obvious from the copies of the service job sheets Ex.C.5 & Ex.C.6 respectively. Target delivery dates were 3.5.2007 and 16.5.2007 respectively. On 2.5.2007 reported fault was of hang and on 15.5.2007, problem reported by the complainant was power : switches off, Cellular access: Drops calls, Audio Poor incoming audio quality Transceiver. <br /> 9. Contention of the learned counsel for the complainant is that mobile handset was creating problems continuously. It was taken to opposite party No.2 even on 28.4.2007 and was returned on 29.4.2007 as is evident from Ex.C.4. Lastly, handset was taken to opposite party No. 2 on 15.5.2007 and its target delivery date was 16.5.2007, but uptill today handset has not been returned by opposite party No.2 duly repaired. He further urged that handset is not repairable due to technical/manufacturing defect in it and new set has not been given in its place.<br /> 10. Sh. Tarlochan Singh, Proprietor of opposite party No.1 argued that there is no deficiency in service on the part of opposite party No.1. Mr. Bhasin, learned counsel for opposite parties No. 2 & 3 argued that there is no defect in the mobile handset. It has been got repaired from level 3 service centre, Chandigarh as is clear from Ex.R.2 & Ex.R.3. Set was received on 23.5.2007, but complainant did not receive it and as such, there is no deficiency in service on the part of opposite parties No. 2 & 3. For this, he also drew our attention to the affidavit Ex.R.2 of Sh. Swadesh Goyal. <br /> 11. We have given our thoughtful consideration to the rival arguments. First material question for determination is as to whether there is any manufacturing defect in the mobile handset. Reply to our minds is in the negative. Complainant has failed to establish manufacturing defect. Set was purchased by him from Dr. Tejpal Singh Wadi on 7.7.2006. For the first time, he brought the set to opposite party No.2 with the problem “after 1 call no all in and out”. It means that complainant continued using the set before it was first time brought to opposite party No.2. Had there been manufacturing defect in the set, the question of its use for such a long time by the complainant, did not arise. There is no expert evidence of the complainant on this aspect of the matter. Hence, affidavits of the complainant on the aspect of manufacturing defect, cannot be given any weight.<br /> 12. As regards deficiency in service on the part of the opposite parties, it is worth mentioning that even on 28.4.2007 set was brought to opposite party No. 2 as per version of the complainant in para No. 4 of the complaint. Opposite party No.2 did not give specific reply regarding receipt of the set for repairs on 28.4.2007. In the affidavit Ex.R.2 Sh. Swadesh Goyal did not state that set was not received on 28.4.2007 from the complainant. To the contrary, there are affidavits Ex.C.1 and Ex.C.2 in which complainant reiterates his version about this fact. From the evidence on the record, conclusion is that set was brought to opposite party No. 2 on 25.4.2007, 28.4.2007, 2.5.2007 and lastly on 15.5.2007. Target delivery date was 16.5.2007. True that as per Ex.R.2 and Ex.R.3, set has been shown to have been sent to level 3 service centre, Chandigarh and after repairs, it has been shown to have been received on 23.5.2007. Question is as to whether opposite party No. 2 made any effort to handover the set to the complainant. Bald affidavit Ex.R.2 that complainant refused to take delivery of the handset, cannot be accepted. It stands amply rebutted with the affidavits of the complainant, which are Ex.C.1 and Ex.C.2. This complaint was filed on 4.6.2007. Its reply was filed by opposite party No.2 on 20.7.2007. There is no documentary proof on the record to establish that attempts were made by opposite party No.2 to deliver the mobile handset to the complainant. It is not a case of opposite party No.2 that address of the complainant was not known. When it is so, it could issue notice to him to receive the set. Hence, plea of opposite party No. 2 that complainant did not receive it, appears to us to be made up one. No weight can be attached to it. As per observations of the Hon'ble National Commission in the case of Dr. Ashok Khan Vs. Abdul Karim and others-2005 CTJ-1207(CP)(NCDRC), both dealer and the manufacturer are jointly and severally liable to the consumer. It cannot be said that dealer is not jointly and severally for the defects in the product. Mobile handset is still with opposite party No.2. Opposite party No.2 is the agent of opposite party No.3 being its service centre. Accordingly, deficiency in service on the part of the opposite parties is proved for which they are jointly and severally liable.<br /> 13. In view of our foregoing discussion, direction deserves to be given to the opposite parties to deliver duly repaired mobile handset to the complainant. Lastly, mobile handset was given for repairs to opposite party No.2 on 15.5.2007. It is giving problems since 25.4.2007. Complainant could not make use of the mobile handset properly. Hence, we find a fit case where warranty period be got extended from the opposite parties for a further period of five months from 7.6.2007 onwards. Due to the deficiency in service for which opposite parties are jointly and severally liable, complainant has been deprived of the use of the mobile handset. This must have caused him mental agony, tension, botheration and harassment for which he deserves some compensation which we assess as Rs.1,000/-.<br /> 14. No other point was urged before us at the time of arguments.<br /> 15. In the result, complaint is allowed against the opposite parties with costs of Rs. 1,000/-. Opposite parties are directed to do as under :- <br /> ( i ) Deliver duly repaired and made functional mobile handset to the complainant against receipt.<br /> ( ii ) Extend warranty on the mobile handset of the complainant for a further period of five months from 7.6.2007 onwards.<br /> ( iii ) Pay Rs. 1,000/- to the complainant as compensation under section 14 (1)(d) of the Act.<br /> ( iv ) Compliance within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 16. Copy of this order be sent to the parties free of cost. File be also consigned. <br /> <br /> Pronounced (Lakhbir Singh)<br /> 14.9.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br /> <br />