Date of Filing: 02-08-2016 Date of Final Order: 18-04-2017
Sri Debangshu Bhattacharjee, Member.
This is an application under Section 12 of C.P. Act, 1986 filed by the Complainant namely Koushik Paul against M/S Mahamaya Enterprise, Cooch Behar i.e. the O.P. No.1 and the Customer Care Officer, Micromax Informatics Ltd., Gurgaon i.e. the O.P. No.2 praying for refund of the purchased value of Rs.6,389/-, Rs.15,000/- as compensation for mental pain & agony and harassment and Rs.15,000/- towards litigation cost.
The case of the Complainant in short is that seeing the advertisement, the Complainant on 24/01/2016 purchased one Micromax Canvas Tab P480/Mobile phone with one year warranty bearing Invoice No. SB6D58/1516/502500, Item Code No.DB5023680, Order No.11127561608, Sub-order No.14050560477, IMEI No.911423954621472 by depositing Rs.6,389/- through Snapdeal. Unfortunately, on 29/01/2016 the said Tab went on Switch Off mode i.e. the fact happened within warranty period. Thereafter, the Complainant went to the Cooch Behar Micromax Care/O.P. No.1 for repairing the Tab. After receiving the Tab of the Complainant, the O.P. No.1 issued one job sheet through online bearing No. E030461-0116-21620105 and informed the complainant to come after 15 days to take his Tab. Accordingly, after 15 days the Complainant went to the O.P. No.1 and that time also the complainant informed to come after one month ,but after several occasion the OP-No.1 failed to repair or returned the mobile set to the Complainant. After five months, the O.P. No.1 handed over the Tab to the Complainant. After few days the mobile set showing Touchpad and Sim-1 problem. Then the Complainant went to the shop of the O.P. No.1 and they showing another IMEI No.911423950727505 and also informed the warranty period is over. Thereafter, the Complainant showing IMEI No. 911423954621472 of his original Tab and one year warranty was not over. Then The O.P. No.1 issued another job sheet being No.4043 and after 7 days to come but they did not pay any heed. The Complainant contacted with the Customer Care/O.P. No.2 but his all efforts were in vain. On 01/07/2016 the Complainant received one online job sheet being No.E030461-0716-24183005 and after 7 days to come. Accordingly, the Complainant went to the O.P. No.1 but no fruitful result. On 15/07/2016 the Complainant lodged written complaint and give 5 days to the O.P. No.1 to hand over the said Tab, but all were in vain.
Due to such activities of the O.Ps, the Complainant had been suffering from mental pain & agony and also harassment. Therefore, the Complainant filed the present complaint for getting reliefs.
The O.P. No.1, M/S Mahamaya Enterprise, Cooch Behar has contested the case by filing W/V 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 bring the case.
The main contention of the O.P. No.1 is that the Complainant brought the said hand set on 01/07/2016 complaining Touch pad problem to this answering O.P and received the said hand set by issuing a Job Card and sent the said set to Head Office for repairing which was intimated to the customer with Head office contact number. After getting back the repaired set from the company, the O.P. No.1 asked the Complainant to take back the said hand set but the Complainant did not pay any heed and unfortunately, after a long lapse of time this O.P. No.1 received a Notice from the Ld. Forum.
The O.P. No.1 further contended that after repairing the said hand set, repeatedly requested/intimated the Complainant over phone to take back the said hand set but the Complainant did not pay any heed and thereafter filed this complaint for his illegal gain and bargain by projecting false story before the Ld. Forum.
It is the case of the O.P. No.1 that the O.P. No.1 is a well reputed business concern and an unblemished carrier and servicing its customer without any complaint since long. The present Complainant to malign the reputation of the O.P concern has brought such wild, false, fabricated and baseless allegations which cannot be allowed to stand.
The O.P No-1 mention the fact that the Complainant has bought the said hand set which has multiple software/Android/Latest version hand set and may arise problems due to mis-handling, excessive net surfing or not having proper knowledge of handling its software or due to virus attacks or excessive charging. The company suggested to follow user guide to avoid such types of problems but the Complainant without following such guide line uses the said set roughly. On the basis of the aforesaid facts, the O.P. No.1 prayed for dismissal of the case with cost.
The O.P. No.2, the manufacturer of the mobile set even after appearing did not contest the case that means the O.P has nothing to challenge the allegation of the Complainant and accordingly the case proceeded in Ex-parte against them.
In the light of the contention of the both parties, the following moot points are necessarily come up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant 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 O.Ps any deficiency in service as alleged by 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. Perused the entire documents in the record and also heard the argument as advanced by the parties at length.
Point No.1.
The Complainant purchased the Micromax Canvas Calling Tablet P480/Mobile through Snapdeal vide Invoice No. SB6D58/1516/502500, Item code No.DB5023608, Order No.1127561608, IMEI No.911423954621472, Date of purchase 24/01/2016, from his present address i.e. with the jurisdiction of this Forum (Annexure 1,A,B,C). The said mobile set was found defective within one month from its purchase and for that reason he visited the local service centre i.e. the O.P. No.1, M/S Mahamaya Enterprise is the service centre of the O.P. No.2. The Complainant purchased the mobile set for his own use. As such he is a consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986. Thus, this point is decided in favour of the Complainant.
Point No. 2.
The Complainant purchased the alleged mobile set through Snapdeal vide proper Invoice. The service Centre (Mahamaya Enterprise) is situated within the jurisdiction of this Forum. The Complainant is also the ordinarily resident of Cooch Behar. Mahamaya Enterprise is the service centre of the O.P. No.2. Therefore, it can be called the Branch Office of the O.P. No.2. The claim amount of the Complainant is below Rs.20,00,000/-. Hence, this Forum has territorial as well as pecuniary jurisdiction to try this case. This point is disposed of accordingly.
Point No. 3 & 4.
Both the points are taken up together for the convenience of discussion as well as the points are related with each other.
The case of the Complainant is that he purchased a Micromax Canvas Calling Tablet-P480/Mobile of Rs.6639/- through Snapdeal vide Invoice No. SB6D58/1516/502500 and the said mobile hand set was found defective within one month from its purchase and for that reason he visited the authorized service centre M/S Mahamaya Enterprise on 30/01/2016. Mahamaya Enterprise received the said mobile set by issuing a Job sheet (Annexure-2) and stated that it would take at least 15 days to return the same. Thereafter, on several occasions the Complainant visited the service centre (Mahamaya Enterprise). After five months Mahamaya Enterprise handed over the same to the Complainant.
The Complainant in his complaint petition stated that after few days of receiving the repaired mobile set, the calling tablet started giving another problem. The Complainant went to the O.P. No.1 shop and reported the problem. The O.P. No.1 firstly rejected to receive the mobile set by saying that the IEMI number of this mobile set was changed. When the Complainant said that he was totally unknown about the matter and the IMEI number of his original set was 911423954621472, then the service centre Mahamaya Enterprise issued another Job sheet (Annexure-3) in the name of the Complainant. From the document “Annexure-4” produced by the Complainant, it reveals that on 15/07/2016 the Complainant wrote a letter to the O.P. No.1 and describes the matter of changing the IEMI number of his Calling Tablet-P480/Mobile. In the same letter the Complainant wrote to the O.P. No.1 about his harassment and mental pain.
In their W/V and Written argument, the O.P. No.1 confirm the matter that at the time of first repairing of the said mobile set the “Mother board has been changed as such the IEMI number of the set has been changed”. The O.P. No.1 was unable to produce any document by which it can prove that they informed the matter to the Complainant in previous.
The two Job sheets issued by O.P. No.1 (annexure–2 & 3 produced by the Complainant) shows that the Complainant went to the service centre with several problems in his Calling Tablet/Mobile set.
In their Evidence on affidavit the O.P. No.1 stated that in the second occasion the Complainant came to their service centre with a problem in the touch pad of the Mobile/Tab. In annexure–A, the O.P. No.1 submitted the Xerox copy of a warranty card.
There is an allegation against the Complainant by the O.P. No.1 that Complainant violets the clause 5(c) and (e) of Warranty Statement (annexure-A, Submitted by the O.P. No.1). As per Clause 3 of Warranty Statement, the O.P. No.1 & 2 both are responsible for repair or replace the defective product. There is no evidence on record that the said mobile hand set was found defective due to mis-handling by the Complainant. As such the deficiency in service of the O.P. No.1 & 2 is well established and the O.P. No.2 is either duty bound replace by a new mobile hand set of same description or to return the price of the alleged mobile.
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 to presume that the said set has some inherent defect. 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. 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. No.1 is not sustainable.
The O.P. No.2, the manufacturer of the mobile 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.Ps. 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.Ps 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 up to 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, both the points are decided in favour of the Complainant.
Hence,
Ordered,
That the present Case No. CC/74/2016 be and the same is allowed on contest against the O.P. No.1 with cost of Rs.2,000/- and Ex-parte against the O.P. No.2 with cost of Rs.5,000/-.
The O.P. No.2 is hereby directed to refund Rs.6,639/- to the Complainant along with interest @ 10% p.a. from 30/01/2016 till payment is made. The O.P. No.1 is further directed to pay compensation of Rs.3,000/- to the Complainant and the O.P. No.2 shall pay Rs.5,000/- to the Complainant as compensation for his mental pain and agony. The entire order shall be complied by the O.Ps jointly and/or severally within 45 days from this day, failing which they shall pay Rs.50/- to the Consumer legal aid account for each day’s delay.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
