This is an application u/s.12 of the C.P. Act, 1986.

For specific redressal to replace the defective set of mobile with a new one or refund of purchase money of Rs.6,580/- along with the other prayers present complaint was filed on 22/05/2013 by the present complainant and the case was admitted for further proceedings on 31/05/2013. Fact remains, the complainant took all initiatives for serving the notice upon the O.Ps. and ultimately considering the entire records it appears that notices were duly served upon the O.Ps. what is apparent from postal internet status report as filed by the complainant which is within the record. But anyhow even after receipt of the said notices of this case, the O.Ps.1 to 4 did not turn up.

As it is evident from the complainant that he purchased one “Nokia” handset being Model No.-Nokia ASHA 302 IMEI No.-355210052319486 and 359348044062354 of Capitol Chowringhee (P) Ltd. from O.P.2 on 13/03/2013 at a sum of Rs.6,580/- only in cash with one year warranty. But just after purchase the mobile did not give proper service and several problems were found at the time of using the said mobile set and no doubt in the set for which the complainant reported the matter to the O.P. and they advised to contact the service provider and to do the needful.  Even the complainant had been to the service center many times for getting redressal but no effect.

So, being harassed and sustaining mental pain and agony and for not getting any service of the essential item, the mobile, what he purchased for his daily use and for the negative attitude of the O.Ps. and the negligent and deficient manner of service, the complainant was compelled to lodge the complaint before the Assistant Director, CA & FBP, Govt, of West Bengal, on 05-04-2013, but the OPs neither settled the dispute nor compensated till today. So, the complainant filed the complaint for redressal.

Truth is that O.Ps did not turn up though they got such chance to defend the allegations of the complainant but anyhow, ultimately for their non-appearance before the Ld. Forum to contest, the case is heard ex-parte.

                                      Decision with Reasons

On in depth study of the complaint and on comparative evaluation of the material documents as filed by the complainant, it is undisputed fact that the complainant purchased one Nokia handset No.355210052319486 and on 13/03/2013 Capitol Chowringhee (P) Ltd. at a price of Rs.6,580/- in cash with one year warranty. It is proved from the document dated 28/03/2013 that the said mobile set was deposited to OP4 for repairs since it was not functioning/working properly for law and Hazy incoming and outgoing problem, as a result it could not be used  and turned off while talking though it was within the warranty period but OP2 or service center failed to give proper service to restore the handset for the purpose of daily use by the customer/present consumer and no doubt there is no challenge on the part of the O.Ps. in respect of the allegations that the said mobile set has not been functioning up to the mark daily and he is not getting proper service even after purchasing such a mobile set which is essentially needed  for him daily.

Considering the above materials on record we are confirmed that this complainant purchased the mobile set from OP2 and she is no doubt a customer under the OP2 and when he is a customer of O.P.-1 invariably a consumer then it is the liability of O.P.-1 to give proper service / relief to the complainant when he sold this present mobile set. Fact remains, there was warranty and she went to the service center who failed to give any service. For that reason service center is not liable but it is liability of the seller to keep watch about the functioning of the mobile within the warranty period because complainant purchased it with good money from OP2 but OP2 did nothing. But a seller has its responsibility / liability to give proper service so that the purchaser customer (consumer) may enjoy the goods as purchased from OP2. So, we are confident that OP2 is the seller of the mobile set and is liable for negligent and deficient manner of service rendered by him to the complainant.

In the particular case only against OP2, the relief can be granted when company is not directly involved to sell the article to the complainant and it is settled principle of law if any shop owner sells any particular goods of any manufacturer of mobile and said shop owner sells it there is the liability of the said shop keeper to give all services to the customer but not the manufacturer or the service centre.

Anyhow, the complainant made parties all of them but only relief can be granted to the complainant against OP2 but not against OPs 1, 3 & 4 because the complainant is not the consumer of OPs 1, 3 & 4 but he is a consumer of OP2 who has not given any proper service and fact remains defects has not been removed by OP2 adopting such process so that it may be returned to the complainant with serviceable condition but that had not been done so invariably complainant is entitled to get relief when she has proved his allegation against OP2. So, OP2 is liable to give proper relief to the complainant as per his prayer.

In the result, the complaint succeeds in part.

Hence,

Ordered

That the complaint be and the same is allowed ex-parte against the OP2 with a cost of Rs.1000/- but the same is dismissed against the OPs 1, 3 & 4 without any cost.

OP2 is directed to refund the entire purchase money of Rs.5,580/-(Rupees Five thousand five hundred eighty only) to the complainant who shall also return the mobile set to the OP2 within one month from the date of this order failing which over the said amount per day penal interest of Rs.25/-(Rupees Twenty five only) shall be assessed till full satisfaction of the decretal dues. OP2 is also directed to pay compensation of Rs.1000/-(Rupees One thousand only) to the complainant for causing harassment and mental agony.

If OP2 fails to comply with the order within stipulated period and as per spirit of this order in that case for each day’s delay punitive damages @ Rs.50/- per diem shall be charged or assessed against OP2 till full satisfaction of the decree and if said amount is collected the amount shall be transmitted to State Consumer Welfare Fund and in this office on proper receipt.   Even if, the O.P. neglects to comply penal proceeding shall be started u/s-27 of the C. P. Act.

Complainant to send one copy of this Judgment to the OP1 at once for compliance. 

Dictated & Corrected

          by me