Haryana

Fatehabad

CC/347/2015

Mahinder Kumar - Complainant(s)

Versus

M/S Khurana Mobile - Opp.Party(s)

I.D Sihag

10 Jun 2016

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint Case No.347/2015.

Date of Instt.: 11.12.2015.

Date of Decision: 23.06.2016.

Mahinder Kumar son of Krishan Lal, resident of village Badopal, Tehsil & District Fatehabad.

 

..Complainant

     Versus

1. M/s Khurana Mobile Gallery 103, Palika Bazar, Fatehabad, Tehsil & Distt. Fatehabad.

 

2. Karbonn Mobile/ Panasonic Smart Phones Service Centre Palika Bazar Fatehabad, Tehsil & Distt. Fatehabad.

 

3. Panasonic India Pvt. Ltd. 12 Floor Ambience Tower, N.H 8, Gurgaon 120002.

..Opposite Parties.

 

Before:       Sh. Raghbir Singh, President.

                   Sh.R.S.Panghal, Member.    

         

Present:       Sh. I.D. Sihag, Advocate for complainant.

Sh. Parshant Sharma, Advocate for opposite parties No.2  &3. OP No.1 already ex-parte.              

                  

ORDER

 

           Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.

2.                  Brief facts of the present complaint are that complainant had purchased a mobile of Panasonic company model Panasonic-P41HD bearing IMEI No.354531060436116 and 354531060436124 for a sum of Rs.8500/- vide invoice No.10104 on 3.3.2015 from opposite party no.1. One year warranty/ guarantee of the mobile was given to the complainant. It is further averred that just after two/ three months, the mobile stopped working properly and there was hanging problem and its function were not working. The complainant approached to opposite party no.1 and narrated the said problems to op no.1 who told the complainant to visit opposite party no.2. The opposite party no.2 solved the problem of the handset. It is further pleaded that after some days charging problem occurred in the handset and lastly on 23.10.2015, when the complainant approached to the op no.2, the mechanic of opposite party no.2 told that there is major problem in the mobile and asked to come again after two days. It is further averred that thereafter when the complainant visited to op no.2, it did not give any satisfactory reply to the complainant. After that, the complainant visited the office of op no.2 several times, but op no.2 did not pay any heed to the request of the complainant and did not replace or repair the mobile. The complainant also made several calls on the toll free number of Panasonic company about the problem in handset but they had also not given any satisfactory reply and the opposite party no.2 has flatly refused to repair the mobile or to replace the same. It is further pleaded that complainant also made several requests to the opposite parties to return the original cost of the mobile but to no effect and now two days back, they have refused to do so stating that there is manufacturing defect in the mobile. There is great deficiency in service on the part of opposite parties for which the complainant is entitled to compensation of Rs.50,000/- from the opposite parties. Hence, this complaint.  

3.                Upon notice, none appeared on behalf of op no.1 despite service and therefore, op no.1 was proceeded against exparte.

4.                Opposite parties No.2 and 3 appeared through counsel and contested the complaint by filing reply taking several preliminary objections regarding cause of action, maintainability and suppression of material facts etc. It has been submitted that complainant’s allegation that there has been unfair trade practice and deficiency and negligence on the part of opposite parties are baseless without any merit. It has been further submitted that the complainant approached to the opposite party no.2 with the complaint in his mobile and op no.2 prepared the job sheet and sent the mobile in the company (opposite party no.3) for repair. On merits, the contents of the complaint have been denied. It has been submitted that opposite party no.2 told the complainant that mobile will be repaired in 25-30 days and sent the same to op no.3 for repair. The mobile was repaired by op no.3 and same was ready for delivery but the complainant never came to take his mobile despite many calls and stated that he will take a new mobile through the Forum. With these averments, dismissal of the complaint has been prayed for.

5.                The complainant has tendered into evidence his affidavit as Ex.CW1/A and documents as Annexures C1 to C3. On the other hand, opposite parties No.2 and 3 did not lead any evidence.

6.                We have heard learned counsel for the complainant and learned counsel for the opposite parties No.2 & 3 and have perused the case file carefully.

7.                Learned counsel for the complainant has contended that despite the fact that complainant purchased the mobile in question by spending huge amount of Rs.8500/- could not use the same properly due to the defects in the mobile and prayed that opposite parties be directed to refund the price of the mobile in question and also to pay adequate compensation for deficiency in service and prayed for acceptance of the complaint. In support of his contentions, he has relied upon judgment of the Hon’ble Delhi State Consumer Disputes Redressal Commission, Mumbai in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Ltd. And ors. First Appeal No.359 of 2012 decided on 11.2.2014.

8.                On the other hand, learned counsel for the opposite parties No.2 & 3 has contended that defect in the charging of the mobile occurred only after more than seven months of its purchase by the complainant and as such there is no manufacturing defect in the mobile. The mobile was sent to the company i.e. op no.3 by op no.2 for repair and after repair, many calls were made to the complainant to take back the mobile but the complainant did not turn up. So he contended that complaint deserves dismissal and reliance is placed on the judgment of the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case titled as Raj Kumar Vs. Pawan Communication I (2014) CPJ 149 (HP) wherein it has been held that “Consumer Protection Act, 1986- Sections 2(1) (f), 2 (1) (g), 15- Goods- Mobile Phone purchased- Defects- Warranty period- Repairing done- Problem developed again- Repaired set not delivered- Alleged deficiency in service- Refund of price sought- District Forum dismissed complaint- Hence appeal- District Forum observed that during the course of hearing appellant refused to accept either repaired set or new set of Nokia mobile of same price when offered by respondent- Impugned order upheld.

9.                We have considered the rival contentions of the parties. There is no dispute of the fact which has been established on record that complainant purchased the mobile in question from opposite party No.1 for a sum of Rs.8500/- on 3.3.2015 as is evident from copy of bill placed on file as Annexure C1. According to the complainant just after two/three months of its purchase, the mobile started creating problem of hanging and its function were not working and on his complaint, the op no.2 solved the said problem. Then the complainant has alleged problem of charging in the mobile on 23.10.2015 and stated that there is manufacturing defect in the mobile. The complainant has placed on file job sheet dated 23.10.2015 issued by op no.2 wherein he complained about charging problem. In so far as contention of the complainant that there is manufacturing defect in the mobile is concerned, same is not believable because at the first instance i.e. within two/three months when the problem regarding hanging occurred in the mobile, the same was solved by the opposite party no.2. The hanging problem may be due to uploading of documents in excess. The complainant has used the mobile up to 23.10.2015 i.e. for a period of more than seven months. Some wear and tear in the mobile cannot be said to be manufacturing defect. However, after 23.10.2015 i.e. within warranty period, the complainant has been able to prove deficiency in service on the part of the opposite parties No.2 & 3 as they took several days for repair of the mobile.  The opposite parties No.2 & 3 in support of their contentions that mobile has been repaired but complainant has refused to take back the same is not supported by any reliable and cogent evidence. The opposite parties No.2 & 3 could have produced the mobile in question before this Forum after appearance to strengthen their above said plea. The complainant has testified in his affidavit that opposite parties never informed him that his handset has been repaired and never asked to collect it from care center. He has also testified that he visited so many times to the care center of op no.2 and that opposite parties have not repaired the handset till today. The allegations of the complainant in this regard have gone unrebutted and unchallenged because opposite parties No.2 & 3 have not placed on file any affidavit in support of their averments and in the evidence. So the version of the complainant has to be believed.  The authority cited by learned counsel for opposite parties No.2 & 3 is not applicable to the facts and circumstances of the present case because in that case during the course of hearing complainant/appellant refused to accept either repaired set or new set of Nokia mobile of same price when offered by respondent but in the present case no such offer has been given.  

10.              Keeping in view the facts and circumstances of the present case,  we are of the view that the opposite parties No.2 & 3 are liable to compensate the complainant in terms of money as complainant has lost faith in the product of the opposite parties. Reliance in this regard can be placed on the observations of Hon’ble Delhi State Commission, Mumbai in case titled as Jugnu Dhillon Vs. Reliance Digital (supra). However, as the complainant has used the set in question for more than seven months, we are of the view that complainant is entitled to get refund of the amount after proportionate deduction. In this regard we are also fortified with the observations of the Hon’ble Goa State Consumer Disputes Redressal Commission, Panji in case titled as Accel Frontline Ltd. Versus Anant Govind Kandeparkar, I (2014) CPJ 51 (Goa).

11.              Thus, as sequel to our above discussion, we partly allow the present complaint and direct the opposite parties No.2 &3 to refund Rs.6000/- against the price of mobile to the complainant. We also direct the opposite parties No.2 & 3 to pay a sum of Rs.1000/- as compensation to the complainant for harassment including litigation expenses. The opposite party no.1 i.e. dealer is exonerated from any liability.  Order of this Forum be complied within a period of 30 days from the date of receipt of copy of this order, failing which the above said amount of Rs.6000/- will carry interest @9% per annum from the date of order till actual realization.  Copy of this order be supplied to the parties free of cost.  File be consigned after due compliance.

Announced in open Forum.                                                     Dated:23.06.2016

                                                           

                                                                                                             (Ranbir Singh Panghal)                                      (Raghbir Singh)             Member                                             President                                                                                                          District Consumer Disputes                                                                              Redressal, Forum, Fatehabad.