SRI R. DEY, MEMBER
The present case is filed by the complainant praying for direction to the OPs to return back the value of mobile handset of Rs. 4,200.00, to pay compensation Rs. 15,000.00 for mental agony and harassment and others.
The complainant-s case, in a nutshell, is that the complainant purchased a Zen Ultrafone 303 mobile set paying Rs. 4,200.00. After two days of purchasing the said mobile set became defective. The complainant had informed the matter to the OP no. 1 and OP no. 1 changed the old defective and faulty set and offered the complainant a fresh new mobile set, but the second new mobile set also became worst after few days. Then the complainant offered the mobile set to the OP no. 2 for repairing. The Op no. 2 promised the complainant to return the said mobile set after 10 days, but the Op no. 2 did not give any positive response to the complainant. The complainant had to wait for 45 days for the said mobile set and after that, the complainant came to Consumer Affairs Department for assistance and with the help of the said department, the complainant got a new set on 7-10-2013. The said new set was not seal packing and the said sets IMEI nos. are similar to the old mobile set IMEI nos. , which was given to OP no. 2 for repairing. At the very next day of receiving the said mobile set from OP no. 2 the complainant faced the same problem in the said new mobile as before. Again the complainant made a complaint before the Consumer Affairs Department, Purba Medinipur on 24-10-2013 and after sending letter/notice to the Op no. 2 from Consumer Affairs Department, the OP no. 2 remained silent and did not respond since 3 months, hence the case has been filed by complainant against OP nos. 1 & 2.
In respect of his petition and pleadings the complainant has filed the documents namely Xerox copies of the first complaint to Consumer Affairs Dept, the copy of mediation dt. 17-09-2013, the purchase bill of the said mobile set, the warranty card, the complaint before Consumer Affairs on 24-10-2013, the letter of Consumer Affairs Dept., Purba Medinipur dt. 08-11-2013.
The OP no. 1 has appeared in this case by filing WV as also WNA. The OP no. 1 has admitted that the complainant-s mobile set had been sold from OP no. 1 having received Rs. 4,200.00. As per complainant-s complaint about the said mobile set, the OP no. 1 offered him a new mobile set in exchange of old defective mobile set. The OP no. 1 did not know anything about the dispute between the complainant and OP no. 2 in respect of the second mobile set which had been offered to the complainant by OP no. 1in exchange of the first mobile set which became faulty.
The OP no. 2 has appeared in this case by filing WV as also WNA wherein the OP no. 2 has stated that the complainant gave the Zen mobile model Ultrafone 303 to the OP no. 2 on 8-1-2013 for repair but after repair the complainant did not take delivery of the mobile set from the OP no. 2. Suddenly, the OP no. 2 received a notice from Assistant Director, Consumer Affairs Department, Purba Medinipur. On 7-10-2013 OP no. 2 delivered said mobile set in good condition in presence of the Assistant Director, Consumer Affairs Department, Purba Medinipur.
None of the parties adduced any evidence but they have relied upon the averment in their respective pleadings which were supported by affidavit and the documents submitted by them before this forum, but both the parties submitted their WNA.
We have gone through the pleadings of the parties, documents including the WNA submitted by them.
Points for consideration
- Is there any deficiency on the part of the OP/OPs?
- Whether the complainant is entitled to get any compensation/relief, as prayed for?
Decisions with reasons
Having perused the pleadings of the parties and the documents filed on the record it appears that the complainant had purchased a Zen mobile set having model Ultrafone 303 and IMEI no. 911312650037341 and 911312650037358 on 13-06-2013 from OP no. 1. As per warranty card of Zen mobile it appears that the warranty period of GSM handset exists for 12 months from the date of purchase. Accordingly the complainant-s mobile set under warranty facility of the company till 13-06-2014. From the job card of the Zen mobile Authorized Service Centre namely Classic Gift Shop & Mobile,, who is OP no. 2 in this case, it is found that the complainant gave the defective mobile set to OP no. 2 on 1-8-2013. In the job card filed by the OP no. 2, it appears that the repair date is 27-09-2013 and complete date is 27-09-2013 and PCB changing date is 10-09-2013, but delivery date to the complainant is not mentioned anywhere. From the peaceful mediation copy dt. 7-10-2013 it is found that OP no. 2 offered a new mobile set to the complainant in good condition. The question arises if as per job chart (Job sheet no. ZMASPWB117J1665) the defective mobile set of the complainant had been repaired on 27-09-2013, then why the OP no. 2 had delivered a new mobile set in good condition to the complainant on 7-10-2013 in presence of Assistant Director, Consumer Affairs & FBP, Purba Medinipur. Here we find an incongruity on the part of the OP no. 2 in delivery of Zen mobile set to the complainant. After the delivery of the said mobile set in presence of Assistant Director, Consumer Affairs & FBP, Purba Medinipur, the complainant faced the same problem, the mobile set became worst and defective. The complainant again made a complaint to the Assistant Director, Consumer Affairs & FBP, Purba Medinipur on 24-10-2013 informing the entire matter in details. The Assistant Director, Consumer Affairs & FBP, Purba Medinipur sent a letter to the OP no. 2 on 8-11-2013 for taking immediate initiative from OP no. 2 but no response had been raised from the OP no. 2. The complainant purchased a mobile set on 13-06-2013 paying Rs. 4,200.00 but after purchasing the same, he was unable to use the same regularly and smoothly due to the frequent defect and problem of the said mobile set and till the filing of the instant case, the complainant has been going through the same problem regarding his mobile set. As we find no response from OP no. 2 after 8-11-2013 till the filing of the case, when the warranty period of the said mobile set was existing, hence we find deficiency in service on the part of the OP no. 2, but OP no. 1 as a mobile seller changed the first defective mobile set by providing a new mobile set to the complainant after being informed the defectiveness of the first sold mobile set from the complainant, hence we find no deficiency in service on the part of the OP no. 1.
As the complainant informed the OP no. 2 about the defectiveness of the mobile set delivered on 7-10-2013 through the Assistant Director, Consumer Affairs & FBP, Purba Medinipur, so, the complainant has been entitled to get an extension of time of day of warranty period. Having perused the entire documents and arguments made by the complainant and OP no. 2, we feel that the OP no. 2 should deliver a fresh non-defective and technically sound mobile set of Zen Ultrafone 303 mobile set without taking any cost from the complainant instead of the above defective one within 30 days from the issuance of this order and a compensation of Rs. 3,000.00 together with Rs. 1,500.00 for litigation cost to the complainant within the same period.
Hence, it is
ORDERED
That the instant case and the same is allowed against OP no. 2 and dismissed against the OP no. 1 on contest. OP no. 2 is directed to deliver a fresh non-defective technically sound Zen Ultrafone 303 mobile set without taking any cost from the complainant instead of the above defective one and pay Rs. 3,000.00 to the complainant as compensation together with Rs. 1,500.00 as litigation cost within 30 days from the issuance of this order failing which, the complainant shall have the liberty to execute this order in which case, Rs. 100.00 per day will be paid by the OP no. 2 to the complainant from the issuing of this order till the compliance of this order.
