BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.46 of 2016

Date of Instt. 20.01.2016

Date of Decision: 13.09.2017

Rajat Chopra S/o Sh. Pawan Chopra R/o NB-266, Luxmi Pura, Jalandhar, Age 28

..........Complainant

Versus

1. M/s Nokia Corporate/Branch Office SP Infocity, Industrial Plot No.243 Udyog Vihar, Phase 1, Dundhera, Gurgoan, Haryana- 122016, India, through its Managing Director/General Manager/Manager/Representative.

2. M/s Vision Way Ground Floor, Jabble Tower, beside grand Mall, BMC Chowk, Jalandhar.

3. M/s Mobile House HO Chadda Mobile House Pvt. Ltd., Phagwara Gate Jalandhar.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Complainant in person.

Sh. Vishal Chaudhary, Adv Counsel for OP No.1 and 2.

OP No.3 exparte.

Order

Karnail Singh (President)

1. The instant complaint filed by the complainant, wherein alleged that the complainant purchased a mobile handset Model No.MICROSOFT Mobile Lumia No.535, 357791069278805 from the OP No.3, vide invoice No.59532 dated 22.01.2015. The said product was covered with a complete warranty of one year from the date of delivery. After few months, the complainant found that the above said mobile phone is not working properly and causing problems related to Wi-Fi, Hanging, Slow Processing, Auto Switch Off, Poor Battery Backup and Auto Respond, then the complainant complained the matter to the OP No.2, after the preliminary checking of the mobile phone, the employee/engineer of the OP No.2 found that it is not working properly and causing many problems related to Wi-Fi, Hanging, Slow Processing etc. The engineer of the OP No.2 informed the complainant that the same is not properly repairable but he can try to rectify the same. In that event, mobile phone was taken into custody by the engineer/employee of the OP No.2 and a job sheet was issued. As per assurance made by the OP No.2, the complainant visited the office of the OP No.2 and demanded his mobile phone back and after taking the delivery of the same, the employee of the OP No.2 told the complainant that the mobile phone is rectified, now it is working efficiently. On the request of the employee/engineer of the OP No.2, the complainant signed on the job sheet and received the handset. Again after few months, on 29.12.2015, the complainant found that the above said mobile phone is not working properly from the last two months but it was the high time to give the handset back to the OP No.2 as it is not in condition to use and causing network problem etc., then again after preliminary checking of the mobile phone, the employee/engineer of the OP No.2 again found that it is not working properly and causing many problems. In that event, mobile phone excluding battery was taken again into custody by the engineer/employee of the OP No.2 and a job sheet/customer service report bearing No.916433527/151229/005 dated 29.12.2015 was issued to the complainant. Thereafter the mobile set was again delivered to the complainant, but when it was checked by the complainant in the premises of OP No.2, he found that the mobile phone is not working properly and where from OP No.2 replied that this problem is temporary and the mobile phone will start working properly within one or two days, on the assurance of the employee/engineer of the OP No.2, the complainant received his handset under protest from the OP No.2 and came back.

2. That after few days, when mobile phone of the complainant was not started working properly, again same problem then once again the complainant approached to the OP No.2, who again retained the mobile phone and issued a job sheet dated 11.01.2016 and assured the complainant that the defect will be rectified within a short period, then complainant again visited the office of the OP No.2 and demanded his mobile phone back, then another employee of the OP No.2 handed over the same to the complainant, then the complainant checked it again in the premises of the OP No.2 and then he again found that all the problems were present in the mobile phone and no work/repair has been done on the same. After that the complainant refused to take the delivery of faulty handset from the OP No.2 and as such the OP knowingly and vexatiously harassed the complainant by supplying a faulty mobile phone, knowing-fully well that the mobile having inherent manufacturing defect and OP No.2 has provided negligent and deficient services to the complainant within a warranty period and as such necessity arose to file the present complaint with the prayer that the present complaint may be accepted and OPs be directed to refund the purchase price of the mobile phone i.e. Rs.8500/- and to pay Rs.70,000/- as compensation for harassment, mental tension and agony to the complainant and also to pay cost of litigation expenses of Rs.15,000/- for providing negligent and deficient services to the complainant.

3. Notice of the complaint was given to the OPs but despite service, OP No.3 did not come present and ultimately he was proceeded against exparte, whereas OP No.1 and 2 filed joint reply and contested the complaint by taking preliminary objection that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts and further alleged that except of those that are expressly admitted herein under, the OPs denies all allegations and claims which are contained or raised in the complaint. The complainant is not entitled to any claim or to get any relief claimed therein. The complaint in his reply stated that the complaint is not maintainable in law or not on the true facts and the same is liable to be dismissed. It is further averred that the complainant has failed to disclose all the facts before this Forum and further alleged that as per the information and record available with the OPs, the complainant has purchased the handset on 22.01.2015 and from that date the handset was working properly and there was no defect in the handset but the complainant in order to harass and pressurize the OPs visited the office of OP No.2 on 29.12.2015. It is necessary to mention here that after the preliminary checking, the engineer of answering OPs told the complainant that he has not used the handset properly and due to which the problem was occurred and the complainant was ever eager to book his handset, vide job sheet and the OP No.2 repaired the handset of the complainant and returned the handset to the complainant after repairing it but the complainant again on 11.01.2016 visited the office of OP No.2 and insisted the engineer to book the handset in question and also forced the answering OP to replace the handset with new box one but the engineer told the complainant that there is no policy of the company to replace the handset with new box one. Rather the answering OP told the complainant that they can swap the handset (meaning thereby they can replace the handset with the another one without box and accessory) and the complainant accepted the same and booked the handset of the complainant vide job sheet No.916433527/160111/001 and as per that the handset was sent to head office for replacement and then OP No.2 received the new swapped handset and called the complainant to receive the same but the complainant then visited the office of OP No.2, and refused to receive the swapped handset and told that he want upper model and the OP No.2 again sent the handset to head office and on 05.02.2016, the OP No.2 receive the handset bearing model Lumia 540 and called the complainant to receive the said handset and thereafter the complainant never turned back to receive the handset, rather in order to fulfill his in genuine and unreasonable demand, the complainant filed the present complaint and only on this score, the present complaint is liable to be dismissed with costs. It is further averred that the complaint is false, frivolous, vexatious and is liable to be dismissed. On merits, it is admitted that the complainant has purchased the mobile handset but the remaining allegations are categorically denied and lastly submitted that the complaint of the complainant is without merit and the same may be dismissed.

4. In order to prove the case of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C1 to Ex.C5 and closed the evidence.

5. Similarly counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.OP/A and closed the evidence.

6. We have heard the complainant in person as well as learned counsel for the OP No.1 and 2 and also scanned the case file very minutely.

7. The factum in regard to purchase of Microsoft mobile by the complainant on 22.01.2015, from OP No.3 is not in dispute, rather the factum in regard to depositing of mobile with the service centre of OP No.2, for repairing the same is also not denied by OP No.1 and 2, rather the OP No.1 and 2 admitted that the complainant deposited the mobile for repair purpose on 29.12.2015 and then 11.01.2016 and these factum have been also corroborated from the Job Sheets dated 29.12.2015 Ex.C5 and Job Sheet dated 11.01.2016 Ex.C2, the problem mentioned in both the job sheets is Poor Network, Slow Response, Touch Problem and it is also mentioned in the both job sheets that the product is under warranty. So, under these circumstances, the complainant is able to establish that there is a manufacturing defect in the mobile set being reason the same could not be repaired by the service centre/OP No.2 despite accepting the same twicely through job sheet Ex.C5 and Ex.C2, if there is no inherent manufacturing defect in the mobile set, then they have to repair the same and return the mobile set to the complainant but admittedly, the mobile set is still lying with the OP No.2/service centre. Further, if there is no manufacturing defect then the remedy with the OP No.1 and 2 is to examine the mechanic/engineer, who physically check the mobile set but for the best known reason, the OP has not examined any mechanic/engineer, who establish the factum that there is no manufacturing defect. So, in the absence of such type of evidence, on the part of the OP, the version of the complainant is admitted that there is a manufacturing defect in the mobile set and this observation is further corroborated from the admission of the OP No.1 and 2 in para No.4 that the OP No.1 and 2 are ready to replace the mobile handset with a swapped handset (meaning thereby they can replace the handset with the another one without box and accessory). The OP is ready to replace the handset without box and accessory but alleged in para No.4 on preliminary objection that complainant refused to receive the said set. This version of the OP is not acceptable because if new set is given to the complainant then why he will refuse to receive the same. So, the admission of the OP No.1 and 2 that they are ready to replace the handset of the complainant with the swapped mobile handset itself establish that there is a major defect in the mobile handset and due to that reason, the OPs are ready to replace the set. So, under these circumstances, we find that the complainant is entitled for the relief claimed.

8. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the purchase price of the mobile phone i.e. Rs.8500/- with interest @ 9% per annum from the date of purchase i.e. 22.01.2015 till realization and further OPs are directed to pay compensation for harassment to the complainant, to the tune of Rs.3000/- and litigation expenses of Rs.2000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Complaint could not be decided within stipulated time frame due to rush of work.

9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

13.09.2017 Member President