Tripura

StateCommission

A/6/2020

Nabakumar Das - Complainant(s)

Versus

M/S Laxmi Telecom - Opp.Party(s)

Self

31 Aug 2020

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.6.2020

 

 

 

1. Shri Nabakumar Das,

S/o Sri Narayan Ch. Das,

Kamalghat Opposite of ICFAI University,

Mohanpur, Tripura,

Agartala, West Tripura, Pin - 799210.

… … … … Appellant/Complainant.

Vs

 

1. The Proprietor of M/s Laxmi Telecom, 

22 Office Lane, Agartala,

District - West Tripura,

Pin - 799001.

                                                          … … … … Respondent/Opposite Party.

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

Mr. Kamalendu Bikash Das,

Member,

State Commission

 

 

 

 

For the Appellant:                                                Sri Nabakumar Das.

For the Respondent:                                            Absent

Date of Hearing:                                                  17.08.2020.

Date of Delivery of Judgment:                           31.08.2020.

 

 

J U D G M E N T

 

U.B. Saha, J,

The instant appeal has been filed by the appellant, Shri Nabakumar Das against the judgment dated 07.01.2020 passed by the learned District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.C.C.08 of 2019 whereby and whereunder the learned District Forum dismissed the complaint petition filed by the complainant, the appellant herein, and held that the opposite party is not liable for any sort of deficiency of service towards the complainant and directed the complainant to take back his mobile set from the learned District Forum after the expiry of the appeal period.

2. Heard Shri Nabakumar Das, appellant (hereinafter referred to as complainant) appeared in person. None appeared on behalf of the respondent (hereinafter referred to as opposite party).
3. Brief facts needed to be discussed are as follows:-

The complainant, Shri Nabakumar Das purchased one mobile set Lenovo K6 Power Model No.K33a42 having 32 GB ROM and 4 GB RAM facilities from the opposite party, M/s Laxmi Telecom on 04.06.2017 for an amount Rs.10,998.40. After using the mobile set for nearly about 11 months, the complainant found sound problem (speaker issue) in his mobile set and he accordingly on 31.05.2018 went to the shop of the opposite party with a request to repair his mobile set and accordingly, handed over the same to the opposite party. The opposite party promised to return the mobile set after repairing within seven days, but the opposite party did not keep his promise and returned the set after 29 days although by this time the complainant visited his shop three days. It is alleged in the complaint petition that after 1/2 weeks the complainant detected that the RAM in his mobile set had been changed from 4 GB RAM to 3 GB RAM. He immediately contacted the opposite party over phone. The opposite party asked him to come to his service centre. The complainant went to the service centre of the opposite party. The opposite party then requested the complainant to leave the mobile set with him at least for one week for sorting out the problem. The complainant did not agree with the proposal of the opposite party. He told the opposite party that he will give the mobile set after purchasing a new mobile set as he did not have substitute mobile with him (complainant). The complainant after purchasing a new mobile set again visited the service centre on 16.11.2018 and handed over the set to the opposite party for repair. The opposite party told him that within seven to ten days, he will deliver the mobile set to him. This time also the opposite party did not keep his promise and could not return the set taking the plea that the mother board of the set had not arrived. It is further stated in the complaint petition that on several dates, the complainant visited the service centre, but the opposite party had failed to return the set. Thereafter, he again went to the service centre of the opposite party and the opposite party then told him that he would give him one new mobile set on 07.01.2019 having price of Rs.12,999/-, but on 07.01.2019, although the complainant visited the service centre, but the opposite party neither handed him over the old mobile set nor provided him a new one. The complainant then stated to the opposite party that he would come to the service centre of the opposite party for taking back his old mobile set after it got repaired, if the opposite party was ready to pay him the expenses he had incurred for transportation from Kailashahar to the shop of the opposite party on several dates from 31.05.2018 to 07.01.2019 including the expenses made by the complainant for food etc. The complainant has further stated in his complaint that on 8^th January, 2019, one employee of the opposite party contacted him over phone and requested him to visit the service centre of the opposite party for taking delivery of the mobile set, but the complainant told him that he would not come to the service centre and requested him to send one representative of the opposite party on 11.01.2019 for delivering the mobile set to him, but till 27.01.2019 no one from the opposite party side contacted him. On 28.01.2019, one representative of the opposite party called the complainant over phone and informed him that one employee of the opposite party would be sent to the complainant on 02.02.2019, but nobody came and contacted with the complainant till filling of his complaint petition. Complainant also stated that his mobile set is still lying in possession of the opposite party.

Being aggrieved by and dissatisfied with the action of the opposite party, the complainant filed a complaint petition under section 12 of the Consumer Protection Act, 1986 before the learned District Forum, West Tripura, Agartala claiming Rs.20,278/-  as compensation which includes price of the mobile set of Rs.10,998/- and which was given for repairing to the opposite party, traveling and food expenses, Rs.5,000/- for causing mental agony and Rs.4,280/- being the cost of new mobile set for being used as substitute mobile set etc.

4. Opposite party appeared and filed his written objection denying the claim of the complainant. In the written objection, the opposite party admitted that the complainant on 31.05.2018 visited his shop with a complaint of speaker/ringer problem in his mobile set. According to the opposite party, the problem was rectified and it was delivered to the complainant on 07.04.2018 (sic). It is also stated that on 16.11.2018 i.e. after seven months of delivery of the mobile set after repair,  the complainant again visited his shop with another complaint that the RAM in his mobile set had been changed to 3 GB RAM  from 4 GB RAM. The opposite party asked to pay cost for rectifying the problem, but the complainant refused to pay any amount for it. Then the opposite party told the complainant that if the RAM of the mobile set would have been reduced to 3 GB RAM from 4 GB RAM due to the fault of the opposite party, then how the complainant used the mobile set for last seven months and that had it been so, he might have taken up the matter with the opposite party at the earliest. It is further stated in the written objection that having found that the complainant is a student, the opposite party agreed to repair the mobile set by way of good gesture. The mobile set was accordingly set at right and thereafter on 07.01.2019, the complainant had been informed by the opposite party over his mobile No.9436908469 to take delivery of the mobile set from the opposite party, but the complainant did not agree to come to the shop of the opposite party. He requested the opposite party to send one of his employees to the College (ICFAI University) of the complainant for delivering the mobile set. The opposite party accordingly on 08.01.2019, sent his employee Sri Rajen Kairy, the O.P.W.2 for delivering the mobile set to the complainant in his College, but Sri Kairy could not deliver it though after reaching at the College (ICFAI University), he tried to contact the complainant in his mobile No.9436908469 many times, but the complainant neither responded to the calls nor he came to receive the mobile set from him. Thereafter, the opposite party on several times tried to contact with the complainant over his mobile phone, but the complainant did not respond to the calls. After few days the complainant contacted with the opposite party over phone and told him that if the opposite party gives him a new mobile set replacing the old one, he will not file any case against the opposite party and that if the opposite party does not do so, he will file a case against the opposite party. It is admitted by the complainant that the old mobile set which was ready for delivery on 07.01.2019 is lying in the custody of the opposite party. Lastly, the opposite party denied any sort of deficiency of service on his part towards the complainant and prayed for rejecting the complaint with costs.
5. In support of his complaint, the complainant examined himself as P.W.1 and submitted his examination-in-chief by way of affidavit. He produced three documents which were marked as Exhibit.1 series. The complainant was also cross-examined by the opposite party side.
6. On the other hand, the opposite party examined himself as O.P.W.1. He also examined one witness, namely, Sri Rajen Kairy, employee of the opposite party as O.P.W.2. They were also cross-examined by the complainant. The opposite party produced one document and the mobile set in question of the complainant. The document was marked as Exhibit - A series and the mobile set as M.O.1.
7. Considering the pleadings of the parties as well as the evidence on record, the learned District Forum framed the following points for deciding the case:-
   1. Whether there was deficiency of service on the part of the O.P towards the Complainant?
   2. Whether the complainant is entitled to get compensation/relief as prayed for?
8. The learned District Forum after considering the evidence adduced by the parties passed the impugned judgment.
9. Being aggrieved by the judgment of the learned District Forum, the complainant has preferred the instant appeal.
10. Sri Nabakumar Das, the appellant-complainant who appeared in person, while urging for setting aside the impugned judgment would contend that the learned District Forum failed to consider his case while passing the impugned judgment. He has also submitted that the opposite party did not discharge his duties so far the handing over of the mobile set is concerned when the opposite party promised him to return the same after repairing within seven to ten days, rather he sent his employee after about four months from the date of depositing the mobile phone and as a result, he had to purchase a new mobile phone after waiting of around three months. He has further contended that he had placed his mobile set twice to the opposite party, first time on 31.05.2018, when he found the sound problem (speaker issue) in his mobile set and accordingly handed over the same to the opposite party and the opposite party returned his mobile set after 29 days though he visited the shop of the opposite party three days and second time after 1 to 2 weeks after delivery of his mobile set, when he detected that the RAM in his mobile set had been changed from 4 GB RAM to 3 GB RAM, he immediately went to the service centre of the opposite party who told him to leave the mobile set with him at least for one week to find out the problem, but he did not agree with it as he did not have any alternate mobile with him. After purchasing a new mobile set he again visited the service centre on 16.11.2018 and handover the set to the opposite party for repair and the opposite party assured him to deliver the same within 7 to 10 days, but the opposite party could not return the set on the plea that the mother board of the set was not available. Thereafter, the opposite party told him that he would give him one new mobile set on 07.01.2019 and thereafter, on 07.01.2019, though he visited the service centre, but the opposite party neither handed him over the old mobile set nor the new one. Finding no other alternative, he filed the complaint before the learned District Forum and when the complaint petition was pending, the opposite party produced the mobile set before the learned District Forum. He finally submitted that the learned District Forum nowhere in the impugned judgment observed that the opposite party is guilty of unfair trade practice and deficiency in service.
11. We have gone through the evidence on record as well as the impugned judgment. It is admitted fact that the complainant purchased one mobile set Lenovo K6 Power Model No.K33a42 having 32 GB ROM and 4 GB RAM facilities from the opposite party on 04.06.2017 cost of which is Rs.10,998.40 and the problem in the mobile phone was started after 11 months of its use and the complainant approached the opposite party on 31.05.2018 for repairing the same. The opposite party after repairing handed over the set to the complainant and he also accepted the same. Thereafter, on 16.11.2018, the complainant again visited the shop of the opposite party with a complaint that the RAM in his mobile set has been changed from 4 GB RAM to 3 GB RAM. Even though, the opposite party declined such allegation of the complainant, he had agreed to repair the mobile set and accordingly, the mobile phone was set at right and was ready for delivery on 07.01.2019. Then the opposite party duly informed the complainant and asked him to take delivery of the mobile phone from the opposite party, but the complainant was reluctant to come and take the same from the shop of the opposite party and as per the request of the complainant, the opposite party sent his representative i.e. the O.P.W.2, Sri Rajen Kairy to the ICFAI University, where he studies, for handing over the mobile phone, but the O.P.W.2 failed to handover the mobile set as he could not get the complainant in the University campus. Thereafter, the O.P.W.2 made so many calls to the mobile phone of the complainant, but he did not respond. From the evidence of the opposite party it also reveals that subsequently the complainant contacted the opposite party over phone and demanded a new mobile set in place of that mobile set which was given to the opposite party for repairing and also told that if his demand is not fulfilled, then he will file a case against the opposite party. According to the opposite party, the mobile set which was given by the complainant was duly repaired and was ready for delivery in time but the complainant with oblique motive and in an unjust manner has refused to take delivery of the mobile set even though he was duly informed about it.
12. On proper scrutiny of evidence adduced by the parties, it appears that when the mobile phone of the complainant was placed before the opposite party within the warranty period, the same was repaired and handed over to the complainant and he also received the same without any complaint. After use of the mobile phone for about seven months, complainant visited the shop of the opposite party for second time with some other complaint. Being the complainant is a student, the opposite party showed a good gesture and informed the complainant that they would repair the mobile phone without any charge and accordingly, the mobile set was repaired and the complainant was informed, but the complainant without receiving the mobile set made a complaint that the RAM of the mobile set was changed from 4GB RAM to 3 GB RAM. We are of the opinion that if there was any delay for handing over the mobile set to the complainant that was not for the opposite party, but for the complainant himself as he denied to attend the shop of the opposite party who tried to handover the mobile set to the complainant even in his University campus, but the opposite party could not do so as the complainant was not found there. According to us, the complainant without any valid reason refused to take delivery of his mobile set. On the other hand, the opposite party seriously tried to deliver the mobile set to the complainant after repairing without any charge/cost and thus discharged his liability towards the complainant so far the mobile set of the complainant is concerned. As there is no other alternative, the opposite party deposited the mobile set in the learned District Forum on 04.09.2019.

We are of the further opinion that the demand of a new mobile set by the complainant is not at all sustainable even when the opposite party did not claim any service charge for repairing the mobile set second time i.e. after expiry of the warranty period.

In view of the above, we are also of the opinion that the learned District Forum rightly considered the evidence on record and did not commit any error while passing the impugned judgment dismissing the complaint petition. Hence, no interfere is called for.

In the result, the appeal is dismissed being devoid of merit. No order as to costs.

It is to be mentioned here that dismissal of the appeal would not be a bar for the complainant to collect his mobile phone in question from the learned District Forum as ordered by it.  

Send down the records to the learned District Forum, West Tripura, Agartala.