Smt. Runa Ganguly, President-In-charge.
Date of Filing: 17-02-2015 Date of Final Order: 18-04-2016
The brief facts of the complaint as culled out from the record is that the Complainant, Abhishek Dey purchased one Micromax mobile hand set being Model No. A111, Model Code – SERMOB0271 with one year warranty from the date of purchasing i.e. 14/02/2014 along with Case Memo being Serial No.157 dated 14/02/2014 by depositing Rs.15,000/- from the shop of M/S Friends Enterprise.
Subsequently, within 14 days from the date of purchase, the said mobile set of the Complainant was totally ‘‘OFF’’ and did not function at all. On 29/10/2014 the Complainant went to the O.P. No.1, M/S Mahamaya Enterprise Customer Service Centre of Micromax mobile regarding the said problem of his mobile set and the O.P. No.1 informed to the Complainant that to handed over the said mobile set for necessary repairing. Accordingly, the Complainant do the same by receiving a received copy (Job Card) and he was asked to come after 10 days to take the said mobile set. Thereafter, the Complainant went to the O.P. No.1 to take his mobile set but the O.P. No.1 replied that at the time of handing over the said set on 29/10/2014 the set was opened. The Complainant again visited with the O.P. No.1 to take the mobile set but on that day the O.P. No.1 informed to the Complainant that the said mobile set has been bended for which the O.P. No.1 was unable to repair the set within the warranty period and the said set was still lying in their custody.
Due to such activities of the O.Ps, the Complainant was suffered from mental pain & agony and financial loss also there was deficiency in service and unfair trade practice, adopting by the O.Ps. The Complainant entitled to get new hand set mobile of the same model from the O.P.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to replace the defective mobile set with new one mobile set of the same model or to refund Rs. 15,000/- as purchase amount and also to pay (i) Rs.10,000/- for deficiency in service and unfair trade practice adopting by the O.Ps, (ii) Rs.3,000/- as compensation for mental pain & agony and financial loss and (iii) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
On behalf of the O.Ps, the O.P. No.1, M/S Mahamaya Enterprise, has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to being this case. The main contention of the O.P is that the Complainant purchased the said hand set on 14/02/2014 i.e. about eight months ago and during this time of use of the said hand set no problem. The Complainant for the first time brought the said hand set after constant use of eight months to this O.P on 29/10/2014 with complaining “Power Does Not Switch ON”. Then and there the O.P received the said hand set by issuing a Job Card and asked the Complainant to come after 7 working days and during checking/verification of the said hand set, the O.P noticed that the set is previously tampered (PCBA bend) and instantly the O.P informed the said matter to the Complainant over telephone and also informed him that as the said set was previously tampered (PCBA bend) so warranty does not attract and the Complainant have to bear the expenses if the O.P repaired the said set otherwise the Complainant may contact with the Manufacturing Company i.e. the O.P. No.2, Officer-in-Charge, Micromax Informatics Ltd., Delhi-110028. Thereafter, the O.P asked the Complainant to take back his mobile set or bear the expenses of its repairing but the Complainant did not pay any heed and the Complainant also did not contact with the O.P. No.2, manufacturing company as advised of the O.P. No.1. The Complainant did never come to the O.P. No.1 for any query as alleged.
Afterwards, on repeated occasions the O.P. No.1 contacted with the Complainant over telephone to take back his mobile set or bear the repairing charge but the Complainant did not anything. Thereafter, the Complainant never came to this O.P. concern after 29/10/2014 as alleged. But unfortunately, after a gap of long time, the Complainant filed this case on false aspersion.
It is Pertinent to mention that the Complainant brought his mobile set which was multiple software/Android/Latest version hand set and may arise problems due to mishandling, excessive net surfing or not having proper knowledge of operating the software or due to virus attacks or excessive charging. “Power Does Not Switch ON” may cause due to excessive charge of the hand set and the company suggested to follow user guide to avoid such types of problems but the Complainant without following such guide line of the company, uses the said hand set very roughly and for which such types of alleged problems may occurs.
But in this case, the hand set as brought by the Complainant was damaged internally which the Complainant suppressed to the O.P at the time of depositing the said damaged set at the O.P Concern and without opening the said set, the O.P did not come to the conclusion that whether the PCBA was bend or not and when the O.P opened the said set for checking/verification, the O.P noticed that the said set was previously tampered (PCBA bend) and such type of damaged may occur due to fall or any other way. Therefore, there was no deficiency in service and unfair trade practice on the part of the O.Ps. As such the Complainant is not entitled to get any relief and/or compensation as he claimed.
Ultimately, the O.Ps, have prayed for dismissal of the case with sufficient cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
It appears from the record that the Complainant purchased a Mobile hand set on 14.02.2014 and handed over the set to the O.P. No. 1 for repairing the set on 29.10.2014. The O.P. No. 1 issued a Job Card in favour of the Complainant. The Complainant purchased the set of the Micromax Company i.e. O.P. No.2 against payment of Rs. 15,000/- for which we have no hesitation to say that the Complainant is the “Consumer” of the O.P. No. 1&2.
Point No.2.
The office/shop of the service provider of O.P. No. 2 is situated in this district and the value of the present complaint is far less than the prescribed limit. Thus, this Forum has every jurisdiction to try this case.
Point No.3 & 4.
Undisputedly, the Complainant purchased a mobile hand set of Micromax Company on 14/02/2014 by making payment of Rs.15,000/-. The said set bears the warranty period of one year from 14/02/2014.
It is also not in dispute that the seller, Friends Enterprise issued a Cash Memo in favour of the Complainant. This seller is not a party in this case.
The point of the dispute is that the said mobile hand set within a short period started problem as alleged by the Complainant in his complaint as well as in evidence on affidavit. The Complainant handed over the said set to the O.P. No.1 for servicing but the O.P did not return the set to the Complainant after servicing.
In the present case the Company, the Officer-in-Charge, Micromax Informatics Ltd. did not come forward even after appearing to challenge the case hence; the case proceeded with Ex-parte against the O.P. No.2.
The O.P. No.1, Service Centre has contested the case and by filing W/V contending inter-alia that the case is not maintainable before this Forum.
It is the case of the O.P. No.1 that the Complainant has filed this case for his illegal gain. The Complainant purchased the mobile hand set on 14/02/2014 and first time he visited this O.P. No.1 on 29/10/2014 i.e. after 8 months of purchasing the said set. Thus, it is crystal clear that during this long period the condition of the said hand set was OK and the Complainant was in use the said set.
It is the further case of the O.P. No.1 that the hand set was previously tampered and for which the O.P. No.1 are not in a position to give full service though warranty period remain in the set.
We have gone through the record very carefully. Perused the documents, evidence on affidavit filed by the parties. It appears that the O.P received the mobile hand set from the Complainant on 29/10/2014 and issued Job Card with reported problem “4101 power does not switch on”.
During the course of argument the Ld. Agent for the O.P vehemently argued that the O.P. No.1 received the set from the Complainant on 29/10/2014 and asked the Complainant to come after 7 working days. But we did not find any remarks/advice of the O.P in job sheet as per his contention. The O.P. No.1 further averred that after checking/verification of the said hand set it appears that the set was previously tampered which does not bear any warranty as such the Complainant was asked to make payment for repairing the set. The Complainant did not agree for which the hand set is not repair by the O.P and he has no deficiency.
In the job Card there is no note of the O.P. No.1 that after receiving the set he opened the set and after 7 days the Complainant will appear to the service centre to receive the set. There is also no iota of evidence in the record that the O.P contacted with the Complainant to receive the set as he stated in evidence also W/V also there is no evidence adduced by the O.P that the set was previously tampered. As per warranty condition the service centre had the duty to return the set in workable condition after proper servicing Thus, the contention of the O.P. No.1 has not been proved also the O.P. No.1 fails to file any cogent documents. The O.P. No.1 opened the set but did not provide actual service to remove the defects in the hand set. Till date the mobile hand set in question is lying with the O.P. No.1 since 29/10/2014. Thus, the deficiency in service of the O.P. No.1 cannot be ruled out also the Complainant is deprived from using the mobile set that he purchased with Rs.15,000/-. The Ld. Agent for the O.P during the course of the argument stated that there is no expert opinion to prove the defect in the set.
From the discussion made herein before, we find that the problem in the mobile hand set cropped up within the warranty period thus it is reasonably be presume that the said set has some inherent defect In view of ruling reported in 2014 CJ 402 (NC) and it is also settled that there is no need of expert opinion where defects are glaring. Seen the warranty card filed by the O.P. No. 1. The Ld. Agent for O.P. has taken plea that the set was previously tampered but there are no documents to prove the same. Besides it is proved that the O.P. No. 1 did not render proper service to the Complainant and thus, the act and conduct of the O.P. No. 1 falls under Section 2(1) (g) of C.P. Act 1986. Company is liable to replace the defective set or make return the price of the said goods. It is the duty of the service provider to render proper service to the customer free of cost within the warranty period as per warranty conditions and it is not fair to raise such question that just before completion of the warranty period the Complainant willfully filed the case. As and when the problem cropped up within the warranty period the consumer has every right to go service centre to avail proper service for which the plea as taken by the O.P. 1 is not sustainable. More so, the O.P. No. 1 admitted the problem in the hand set. The O.P. No. 1 has taken plea that the set was previously tampered but after noticing the fact he did not make any contact with the complainant and brought the matter before this Forum with W/V after getting notice from this Forum. The O.P. No. 1 ought to take contact with the Company as and when he unable to provide service in case of the said hand set. It is pertinent point to mention that in this Forum many cases has been filed against the O.P. No. 1 alleging deficiency in service and most of the cases are decided against this O.P. for which it is crystal clear that this service centre is working in this district by not rendering proper service to the customer. In this case the O.P. No.1 did not give proper service also kept the mobile hand set in their custody for a long period without repair the same. Thus, deficiency in service of the O.P. No. 1 cannot be ruled out.
The O.P. No. 2, the manufacturer of the set even after appearing did not contest the case that means the O.P. has nothing to challenge the allegation of the Complainant.
The prayer of the Complainant is to return back the total purchased amount of the disputed hand set with compensation by the O.P. In this juncture, it is also pertinent to mention that only being the service provider the O.P. No.1 has no liability to return back the cost of the Mobile only the manufacturer/Company is liable to return the price of the set with compensation to the Complainant. The O.P. No. 1 only to take positive step to send the set to the O.P. No. 2 for replacement also liable to compensate the Complainant for his harassment. Both the O.P.s are jointly liable to settle the dispute.
In the light of the foregoing discussion we are in considered view, that only refund of the cost of the mobile hand set will met the justice as and when it is already settled in a case reported in 2009 CTJ 180 (CP) (SCDRC) that- in a dispute of a defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution as such goods may not be upto the satisfaction of the consumer.
Be that as it may, on foregoing discussion, circumstances to the case, together with the attitude and thoughts of the parties in litigation we have reason to believe that there is some defect in the mobile hand set and the O.Ps. are liable to sort out the problem.
As it is already proved that the O.Ps. have deficiency in service, the Complainant is entitled to get relief with compensation.
Thus, the complaint succeeds.
ORDER
Hence, it is ordered that,
The present Case No. CC/14/2015 be and the same is allowed on contest against O.P. No. 1 and in Ex-parte against the O.P. No. 2 with cost of Rs. 2,000/-. The O.P. No.2 is directed to refund the price of the mobile hand set to the Complainant within 45 days after getting the disputed set from the O.P. No. 1. The O.Ps are further directed to pay the Complainant Rs. 2,000/- as compensation. The entire order shall be complied with by the O.Ps jointly and/ or severally within 45 days i/d the O.Ps shall have to pay Rs. 50/- for each day’s delay and the amount so accumulated shall be deposited to the Consumer Welfare Fund.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
