Punjab

Moga

CC/17/85

Darshan Singh Bhullar - Complainant(s)

Versus

M/s SAARU Mohindra Telecom - Opp.Party(s)

Sh. Sukhbeer Singh Ghai

20 Feb 2018

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 85 of 2017

                                                                                      Instituted on: 18.09.2017

                                                                                      Decided on: 20.02.2018

 

Darshan Singh Bhullar aged 59 years son of Sukhdev Singh, resident of village Talwandi Bhangerian, Tehsil and District Moga.

                                                                                ……… Complainant

 

Versus

1.       M/s Saaru Mohindra Telecom, near Govt. Girls Senior Secondary School, Main Bazar, Moga.

 

2.       M/s Rachpal Telecom, 6 Red Cross Market, Court Road, Moga, District Moga.

 

3.       HTC India Pvt. Ltd. (Corporate Office) G-4, BPTP Park Avenue Gurgaon, Sector 30, Gurgaon-122002 (near NH-8).  

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Smt. Vinod Bala, Presiding Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Sukhbeer Singh Ghai, Advocate Ld. Cl. for complainant.

                   Sh. Arun Tayal, Advocate Ld. Cl. for opposite party no.1.

                   Sh. Rachpal Singh, Proprietor for opposite party nos.2 & 3.

 

 

ORDER :

(Per Smt. Bhupinder Kaur, Member)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against M/s Saaru Mohindra Telecom, near Govt. Girls Senior Secondary School, Main Bazar, Moga and others (hereinafter referred to as the opposite parties) directing them to replace the mobile set of the complainant with ne one or to refund its price with upto date interest @ 18% p.a. from the time of purchase. Further they may be directed to pay Rs.50,000/- as compensation for causing mental tension, harassment and agony to the complainant and Rs.5000/- as litigation expenses to the complainant or any other relief which this Forum may deem fit be granted to the complainant.  

2.                Briefly stated the facts of the case are that the complainant had purchased a mobile set of HTC company, HTC Desire-828, IMEI no.352532078375074 from opposite party no.1 for a sum of Rs.16,500/- on 29.07.2016. The opposite party no.1 recommended the complainant to purchase and insurance package for newly purchases mobile set for sum of Rs.1749/-. Opposite party no.1 assured the complainant that if any defect occurred in the mobile within a period of 10 days, then they will replace or repair the same. Opposite party no.1 told the complainant that mobile set is in a perfect condition and free from any kind of defect. The said mobile set started giving trouble in the month of December, 2016 like auto on/off and failed wake up, play the videos, use the calling phone of and short battery life. The complainant approached to opposite party no.1 who refused to listen the grievance of the complainant and directed the complainant to approach to opposite party no.2 and told that opposite party no.2 is the company's authorized collection centre. Accordingly the complainant approached to opposite party no.2 and submitted the mobile set to it and also informed about the defect. Opposite party no.2 kept the mobile set for almost 10 days to get it checked and repaired. After that the mobile set was handed over to the complainant with the assurance that the defects have been removed. But after few days, the same defects had been occurred. The complainant again approached to opposite parties twice, but both the times, same process was repeated by them. Thereafter again believing the false assurance of opposite party no.2 that mobile will not create any problem in future, the complainant had to leave for United Kingdom with the said mobile, however the mobile again stopped working. The complainant also communicated with opposite party no.3 repeatedly, but the replies given by them were always sugar coated and nothing solid was done. The said mobile set is suffering from any inherit irreparable default or manufacturing defect. The complainant also served legal notices upon the opposite parties on 26.07.2017, but to no effect. The complainant grouse can be removed only by changing the mobile set or by refunding its price with upto date interest. Due to the aforesaid act and conduct of the opposite parties, the complainant has suffered mental tension, harassment and agony. Hence this complaint.

3.                Upon notice, opposite parties appeared through counsel and filed their separate written replies.

                   Opposite party no.1 filed written reply taking preliminary objections that the present complaint is not maintainable against the answering opposite party; that no cause of action much less plausible cause of action has arisen in favour of the complainant. So, the complaint is liable to be dismissed. Moreover, the complaint is false, fabricated and misconceived one; that the complainant has not come before this Forum with clean hands. The principal of suppression very suggestion false applies against the complainant and the present complaint deserves to be dismissed on this score alone. Whereas consumer was found to have approached consumer Fora not with clean hands and clear conscience, his complaint was liable to be dismissed.

          On merits, it is submitted that the complainant himself want to insure his handset from any type of damage, therefore, his handset was insured by the answering opposite party. On the request of the complainant, the answering opposite party insured the handset of the complainant. The answering opposite party did not give any type of assurance to the complainant. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with heavy costs is made.

4.                Opposite party nos.2 & 3 filed written reply taking certain preliminary objections that the complaint of the complainant is baseless, devoid of any merits whatsoever and without any cause of action against the answering opposite parties; that the complainant has approached this Forum with unclean hands and has hidden correct facts and hence the complaint deserves to be dismissed on this ground alone. It is further submitted that opposite party no.2 had attended the complaints of the handset very promptly as and when it was brought for in-warranty repairs and there has not been any deficiency in service. On these occasions, the handset was 'within warranty period'. It is further submitted that when the handset was brought last time, it was already out of warranty. The service centre which follows the warranty policy's terms and conditions as a process-oriented company, advised the complainant to pay for the repairs. However, the complainant insisted on free-repairs which is not possible. It clearly shows that the intention of the complainant is not genuine and he is trying to get a replacement/refund with huge compensation. The fact that HTC is a global brand with a high level of quality check gone into each and every part and the device itself is subjected to rigorous quality tests. It is most due to rough usage of the device such complaints are noticed. The present complaint has been preferred by the complainant for alleged defect in handset of the answering opposite parties. The complainant has by way of relief sought compensation/damages without any manger demonstrating that any loss has in fact been occasioned and in what manner computation of compensation claimed has been made. The complaint of the complainant is thus motivated attempt to obtain unfair advantage and is accordingly liable to be dismissed on this ground alone. It is very apparent from the fact of the complaint that the same has been filed with mischievous intentions thereby enabling the complainant to enrich him at the cost of the opposite parties by filing frivolous claim and prayed for the dismissal of the complaint.

5.                In order to prove his case, complainant tendered in evidence his duly sworn affidavit Ex.C-1 and copies of documents Ex.C-2 to Ex.C-4, copy of conversation CD Ex.C-5 and copies of other documents Ex.C-6 to Ex.C-18 and closed the evidence. 

6.                On the other hand, opposite parties tendered in evidence affidavit of Sh.Sudhir Kumar, Proprietor Ex.OP-1/1 and closed the evidence. Whereas, evidence of opposite party nos.2 & 3 was closed by order of this Forum.

7.                We have heard learned counsels for the parties and proprietor for opposite party nos.2 & 3 in person and have also  gone through the file.

8.                The case of the complainant is that on 29.07.2016, he purchased a HTC Desire-828 mobile hand set from opposite party no.1. The opposite party no.1 also insured the mobile set of the complainant and gave assurance to the complainant that in case any defect is occurred in the mobile set, then they will repair or replace the hand set of the complainant. But from the date of its purchase the said mobile set was not working properly. There is a problem of auto on/off, failed wake up, while playing the videos and short battery life in the said mobile set. The complainant visited to the office of opposite party no.1, who directed the complainant to approach opposite party no.2 i.e. service centre of the company. Accordingly, the complainant visited the opposite party no.2, who kept the mobile set with him and returned the same after repair to the complainant with the assurance that there will be no problem in the hand set in future. But despite repair, the mobile was not working properly. Thereafter, the complainant approached opposite parties many times and requested them to repair the mobile hand set or to replace the mobile hand set in dispute, as there is some manufacturing defect in the same, but opposite partied did not pay any heed to the request of the complainant and refused to do so, which amounts to deficiency in service on their part.

9.                On the other hand, opposite party no.1 submitted that that the present complaint is not maintainable against the answering opposite party. So, the complaint is liable to be dismissed. The complaint has not come before this Forum with clean hands.. It is further submitted that the complainant himself got insured his handset against any type of damage, therefore, his handset was insured by the opposite parties. Whereas, opposite party nos.2 & 3 submitted that opposite party no.2 attended the complaints of the handset very promptly as and when it was brought for in-warranty repairs and in these occasions, the handset was 'within warranty period'. It is further submitted that when the handset was brought last time, it was out of warranty. As such, complainant was advised to pay for the repair after warranty period. However, the complainant insisted for free-repairs which was not possible. Furthermore, HTC company is a global brand with a high level of quality check gone into each and every part and the device itself is subjected to rigorous quality tests. The defect which were reported by the complainant is due to mishandling of the handset by the complainant and prayed that complaint may be dismissed.

10.              Now, it is admitted case of the parties that the complainant purchased the mobile set in question from opposite party no.1, which was manufactured by opposite party no.3 and the mobile hand set became defective after few days from the date of its purchase. On it, the complainant approached opposite party no.1, who advised the complainant to approach opposite party no.2 i.e. the service centre of the company. Accordingly, the complainant approached to opposite party no.2 for getting the mobile hand set repaired. But opposite party no.2 did not repair the hand set in question to the satisfaction of the complainant and it remained faulty in providing proper services to complainant. Opposite party no.1 being Distributor, opposite party No.2, being the service centre and opposite party no.3 being manufacturer of the mobile hand set in dispute are under legal obligation to do the necessary repair of the mobile hand set in dispute. The perusal of job card Ex.C-6 and copies of e-mails Ex.C-7 to Ex.C-16 shows that the mobile of the complainant was suffering from some defects, which the opposite parties were failed to remove, which amounts to deficiency in service on their part. In view of the above, we are of the considered opinion that the complainant is entitled to get his mobile replaced.

11.              From the above discussion, the present complaint in hand is hereby allowed and opposite party nos.1, 2 & 3 are directed to replace the mobile phone of the complainant with new one of the same make and model within one month and in case of failure to pay Rs.16,500/- i.e. price of the mobile phone in question alongwith interest @ 9% per annum from the filing of this complaint till realization. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 20.02.2018

 

                                                 (Bhupinder Kaur)                    (Vinod Bala)

                                                       Member                                   Presiding Member