Haryana

Kaithal

234/21

Roshan Saini - Complainant(s)

Versus

M/s Raheja Mobile - Opp.Party(s)

Sh.S.K Saini

05 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                     Complaint Case No.234/2021.

                                                     Date of institution: 17.09.2021.

                                                     Date of decision:05.10.2023.

Roshan Saini aged about 24 years son of Sh. Somnath r/o near Som Auto Agency, VPO Siwan, Distt. Kaithal.

                                                                        …Complainant.

                        Versus

1. M/s. Raheja Mobile Guhla-Cheeka Road, near PNB Bank, Siwan Distt. Kaithal through its Prop. Deepak Kumar.
2. Dinesh Kumar SOS Office of Bajaj Finserv, Ist Floor, Kartar Enclave, Kaithal Road, Cheeka-136034, Mob.No.99963-66456.
3. Bajaj Finserv, Ist Floor, Kartar Enclave, Kaithal Road, Cheeka-136034, through its Authorized Signatory.
4. Bajaj Finserv, Ist Floor, Sector-16, Vardhman Plaza Above Dart Office, Opp. Matro Station Road, Central Auto Market, Block-B, Noida, Uttar Pradesh-201301.

 

….OPs.

        Complaint under Section 35 of the Consumer Protection Act, 2019.

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

       

Present:     Sh. S.K.Saini, Advocate, for the complainant.   

                Sh. Puneet Chaudhary, Advocate for the OPs.No.3 & 4.

                OPs No.1 & 2 exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Roshan Saini-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.

2.             In nutshell, the facts of present case are that the complainant purchased a mobile set make NORD One Plus from the OP No.1 for the sum of Rs.32,999/- (Rs.27,999/- for mobile price + Rs.5,000/- for mobile insurance & other charges) vide invoice No.2025 dt. 21.01.2021.  At the time of purchasing of said mobile set, the complainant paid total sum of Rs.10,600/- (Rs.5600/- as down payment i.e. two installments of total amount and paid Rs.5,000/- for insurance & other charges).  It is further alleged that the said mobile set was financed from OPs No.3 & 4 through OP No.2.  On 05.05.2021, the said mobile set was damaged and complainant contacted the OP No.1 but the OP No.1 flatly refused to replace the said mobile set.  Thereafter, the complainant contacted with the OP No.3 for replacement of said damaged mobile set but the OP No.3 told the complainant that his mobile set is not insured with their company/firm, but at the time of purchasing the said mobile set, a health insurance in the name of complainant without the consent of the complainant was issued by OP No.2.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.     

3.          Upon notice, the OPs No.3 & 4 appeared before this Commission, whereas Ops No.1 & 3 did not appear and opted to proceed against exparte vide order dt. 06.01.2022 passed by this Commission.  OPs No.3 & 4 contested the complaint by filing their written version raising preliminary objections that the instant complaint is defective, baseless and devoid of merits as the complainant has made “Bajaj Finserv” as a party to the complaint, whereas the fact is that the loan has been financed by “Bajaj Finance Limited”; that there is no insurance availed by the complainant from the OP and the complainant has only availed the loan towards the mobile phone, further Rs.5600/- as alleged has been received towards the advance EMI paid; that there is no deficiency in service on the part of OP.  On merits, the objections raised in the preliminary objections are rebutted and so, prayed for dismissal of complaint.

4.             To prove his case, the complainant tendered into evidence affidavits Ex.CW1/A & Ex.CW2/A alongwith documents Annexure-C1 to Annexure-C10 and thereafter, closed the evidence.

5.             On the other hand, the OPs No.3 & 4 tendered into evidence affidavit Ex.RW3/A alongwith documents Annexure-R1 to Annexure-R4 and thereafter, closed the evidence.

6.             We have heard the learned Counsel for both the parties and perused the record carefully.

7.             Ld. counsel for the complainant has argued that the complainant purchased a mobile set make NORD One Plus from the OP No.1 for the sum of Rs.32,999/- (Rs.27,999/- for mobile price + Rs.5,000/- for mobile insurance & other charges) vide invoice No.2025 dt. 21.01.2021.  At the time of purchasing of said mobile set, the complainant paid total sum of Rs.10,600/- (Rs.5600/- as down payment i.e. two installments of total amount and paid Rs.5,000/- for insurance & other charges).  It is further argued that the said mobile set was financed from OPs No.3 & 4 through OP No.2.  On 05.05.2021, the said mobile set was damaged and complainant contacted the OP No.1 but the OP No.1 flatly refused to replace the said mobile set.  Thereafter, the complainant contacted with the OP No.3 for replacement of said damaged mobile set but the OP No.3 told the complainant that his mobile set is not insured with their company/firm, but at the time of purchasing the said mobile set, a health insurance in the name of complainant without the consent of the complainant was issued by OP No.2.  So, it is a clear cut case of deficiency in service on the part of OPs.

8.             On the other hand, ld. counsel for the OPs No.3 & 4 has argued that the instant complaint is defective, baseless and devoid of merits as the complainant has made “Bajaj Finserv” as a party to the complaint, whereas the fact is that the loan has been financed by “Bajaj Finance Limited”.  It is further argued that there is no insurance availed by the complainant from the OP and the complainant has only availed the loan towards the mobile phone, further Rs.5600/- as alleged has been received towards the advance EMI paid. 

9.             From the pleadings and evidence of the case, it is clear that the mobile set in question was purchased by the complainant from OP No.1 for a sum of Rs.27,999/- vide invoice No.2025 dt. 21.01.2021 as per Annexure-C1.   According to the complainant, the said mobile set became defective on 05.05.2021 i.e. within the warranty period.  The complainant deposited the said mobile set with the Op No.1 and OP No.1 stated to the complainant that there is no service-centre of One Plus Mobile in Kaithal and he will get repair the said mobile set from Kurukshetra.  Ld. counsel for the complainant made statement in this Commission on 22.09.2023 to this effect and stated that the said mobile set is still lying with the OP No.1.  The complainant has supported his versions by way of filing affidavits Ex.CW1/A & Ex.CW2/A alongwith documents Annexure-C1 to Annexure-C10.  Whereas, on the other hand, the OPs No.1 & 2 did not appear in the court even single time and they were proceeded against exparte vide order dt. 06.01.2022 passed by this Commission.  So, the evidence adduced by the complainant goes unrebutted and unchallenged against the OPs No.1 & 2.  Hence, we are of the considered view that the Ops No.1 & 2 are deficient while rendering services to the complainant.     

10.            During the arguments, ld. Counsel for the complainant stated that the complainant has purchased a new mobile set and the mobile set, if replaced by the Ops is of no use for the complainant, so, in the interest of justice, the cost of mobile set may please be ordered to got returned from the Ops.  We found force in this contention of the complainant because the defects arose in the mobile set during the warranty period.  In this regard, we can rely upon the authority decided by Hon’ble State Commission, Haryana bearing first appeal No.460 of 2014 decided on 28.05.2014 titled as Deepjot Singh Vs. The Mobile Store.  So, keeping in view the above citation, in the present case, the complainant has used the mobile set in question almost four months, so, we are of the considered opinion that the interest of justice will be met if the cost of mobile set be ordered to be refunded after making 25% depreciation of the same.   

11.            Thus, as a sequel of above discussion, we allow the complaint partly against OPs No.1 & 2 and direct the Ops No.1 & 2 jointly and severally to pay Rs.20,999/- the cost of the mobile set after deducting 25% depreciation i.e. (Rs.27,999/- less Rs.7,000/-=Rs.20,999/-) within 45 days from today, failing which, the aforesaid amount shall carry interest @ 7% p.a. from the date of this order till its realization.  The OPs No.1 & 2 are further directed to pay Rs.5,000/- as lump sum compensation on account of physical harassment, mental agony including the litigation charges to the complainant. 

12.            In default of compliance of this order, proceedings against OPs No.1 & 2 shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:05.10.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.