DATE OF FILING: 23.03.2017
DATE OF DISPOSAL: 27.09.2017
O R D E R
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer complaint under Section 12 of Consumer Protection Act, 1986 alleging defect in goods and deficiency in service against the Opposite Parties( for short O.Ps) and for redressal of his grievances before this Forum.
2. The brief facts that are relevantly required for disposal of this consumer dispute are that the complainant purchased a Micromax mobile set bearing Model No.E455 and IMEI No.91143872446881 and 911438702846882 vide retail invoice No.227 dated 10/02/2016 from O.P. No.1. Soon after purchase of the aforesaid mobile set, it was not properly functioned and within three months in a regular interval started giving problems. The complainant on 08.05.2016 rushed to the O.P. No.1 and appraised the matter and on his, he handed over the defective mobile set to O.P.No.2 i.e. Service Centre on 31.08.2016 for repairing. The complainant got back the mobile set on 26.07.2017 after repairing but the same problem was persisted as a result the complainant once again on 27.09.2017 handed over the mobile set to the O.P. No.2 for repairing. It is further stated that the O.P.No.2 assured the complainant to rectify and remove the problems and accordingly the service centre after repairing of the mobile set handed over the mobile to the complainant on 29.10.2010. However, the same problem was repeated and once again the complainant for the third time on 21.12.2016 the defective mobile set was handed over to the service centre of O.P. No.2 for immediate removal of defects with a request to replace with a new mobile set. But the O.P.No.2 remained silent over the matter and did not replace the mobile set. It is also stated that the aggrieved complainant redressed his grievances before Consumer Counselling Centre of ACCRO/FOCO located at Ramlingam Tank Road, Berhampur and the said Consumer Counselling Centre after going through the documents issued a notice to the O.P. No.2&3 on 12.01.2017 to do the needful and requested to replace the mobile set. On receipt of the notice of the officials of O.P. No.3 one namely Mounica contacted the complainant via mobile No. +911 244310200 on 14.01.2017 and assured to make delivery of a new mobile set within five days. Accordingly the complainant received a call from O.P.No.2 on 19.01.2017 to receive a new pouch pack of mobile set as advised by O.P.No.3 but when he found that it was an old and used mobile set without seal with scratches on the camera, he did not receive the said mobile set and returned with dissatisfaction. Again the complainant approached the Consumer Counselling Centre and the said counseling centre issued a reminder to the O.P. No.2&3 to provide a new mobile set as assured by O.P. No.3. He has further alleged that in this case the O.P.No.1did not cooperate with the complainant stating that he has no responsibility after sale of the product and neglected the consumer. When the O.P.No.2&3 did not give any heed to his grievances to replace the defective mobile set, the complainants has filed this consumer dispute in this Forum against the O.Ps with the prayer to direct the O.Ps to replace the mobile set or to refund the cost of mobile set. He has also prayed to direct the O.Ps to pay a sum of Rs.4,000/- towards compensation for physical harassment and mental agony and pay amount of Rs.1,000/- for cost of litigation in the interest of justice.
3. On receipt of notice from this Forum, the O.P.No.1 appeared in this Forum on 08.05.2017 through learned counsel Shri M.K. Mohapatra, Advocate, but failed to file his written version within the statutory period hence declared as ex-parte on 24.07.2017. However, the learned counsel for the O.P.No.1 filed his written version along with set aside petition on 23.08.2017 with the prayer to set aside ex-parte order dated 24.07.2017. On 21.09.2017 the Forum turned down his prayer of setting aside the order on the ground that this Forum has no power to set aside the ex-parte order and rejected the set aside petition of O.P. No.1. The O.P.No.2 though received the notice but did not prefer to file his written version as a result he was declared ex-parte on 18.07.2017. Similarly, the O.P. No.3 appeared in this Forum on 12.05.2017 and not preferred to file his written version with in the statutory period hence declared as ex-parte on 24.07.2017. Hence, in this case all O.Ps are declared as ex-parte and the case was proceeded ex-parte against all O.Ps accordingly.
4. On the date of ex-parte hearing of the consumer dispute, we have heard the authorized person for the complainant Shri P. Kameswar Rao and the complainant in person and have also gone through the complaint, written argument of the complainant and perused the materials placed on the case record.
On going through the file on record and on merit it is not in dispute that the present complainant purchased the aforesaid mobile set of Micromax bearing Model No.E455 and IMEI/ESN No.911438702446881and 911438702846882 respectively from the O.P. No.1 on payment of Rs.9,600/- as is evident from the retail invoice bearing No.227 dated 10/02/2016 placed on the case record as Annexure-A. It is also beyond dispute that the said mobile set was found defective as a result of which the complainant approached to the O.P. No.1and on his advice also contacted the O.P. No.2 i.e. Service Centre for repairing on 08/05/2016. On careful perusal of record of the case, it is crystal clear that the said mobile set was repaired thrice on 31.08.2016, 27.09.2016 and 21.12.2016 as is evident from the job cards issued by the O.P.No.2 with respect to said defective mobile set. From the job cards issued by the O.P. No.2 it reveals that the mobile was suffering from the defects like SIM network auto gone, blank display and other display problems. From the job card it is also confirmed that the defective was found during the warranty period and there were no warranty conflicts regarding repairing of the said mobile set. From the foregoing discussion it is clear that the mobile set was found defective during warranty/guarantee period and there was not warranty conflict with regard to the said mobile set. It is also a fact not in dispute that the said dispute and repairing of the said mobile was reported to the O.P. No.3 and the O.P.No.3 promised to exchange the defective mobile with new one at the earliest and also assured for exchanging the mobile set. However, when the complainant was called over phone on 19/01/2017 to receive the new pouch pack of mobile set it was alleged to have not received by him as it was an old and used mobile set without seal and with scratch on the camera and was used with SIM cards. It is also alleged that the O.P.No.1 though sold the mobile to the complainant but on complaint of defective did not care to do the needful for the complainant. In the foregoing context, in our considered view it is beyond doubt or dispute that the aforesaid mobile set was defective since the mobile was thrice handed over to the O.P.No.2 for repairing and in spite of repeated repairing was done as is evident from the job cards the same could not be removed. Besides, the O.P.No.3 when assured to replace the defective mobile set he also did not do so with fairly manner since when the complaint went to receive the new mobile set of pouch pack it was found to be an old and used mobile with scratch on camera. In view of the above, we feel there was manufacturing defect in the said mobile set and the O.Ps failed to replace the defective mobile set of the complainant which speaks volumes against their deficiency in service and unfair trade practice. In this case the O.Ps though appeared through their learned counsels but did not prefer to contest the case and remained silent. The O.P. No.3 though appeared but did not contest the case and prior to that was tried to satisfy the complainant by handing over an old and used mobile set which is an unfair trade practice on part of the O.P.No.3. In this case when the O.Ps failed to contest the case respectively and not controverted the contentions of the complainant we are forced to accept same in absence of any version from the O.Ps. Even no affidavit of any expert or technician of O.P.No.3 i.e. Micromax Company filed to show that the said mobile set was working properly without any defect during the warranty period. As per the contentions of the complainant the said mobile phone did not work properly despite repairing of the same for three times by the service centre of O.P. No.3. He has also pleaded that the O.Ps had failed to replace its defective mobile set despite various assurances given to him and even did not respond to its problems even after repeated approaches made through the letter of consumer counseling centre bearing No.FOCO/14//2017 dated 13.01.2017 as revealed from the case record. It is also a fact that the O.P. No.2 i.e. Service Centre till date has retained the defective mobile set with him on account of failed to rectify the same which also proves beyond doubt that it was a mobile set with inherent manufacturing defect. The O.P.No.2 is the authorized service centre of the O.P.No.3 who failed to rectify the problems of the aforesaid mobile set establish beyond doubt that the mobile set was suffering from inherent defect for which the authorized service centre could not rectify the same. In view of the foregoing fact and circumstances of the case, we do not find any cogent and convincing reasons to deny the claim of the complainant hence we are pleased to allow the case of the complainant against the O.P. No.2 & 3 and absolve the liabilities of O.P. No.1. The O.P. No.3 can’t shirk his responsibility being the manufacturer of the mobile set and he is liable to replace the mobile set of the complaint or to refund the cost when it was found to be defective during warranty/guarantee period and failed to rectify the same even after repeated repairing by the authorized service centre as is established from the case record. In our considered view we would therefore like to state that the O.P. No.3 is deficient in service and liable to refund the cost of the mobile to the complainant since the complainant at this point of time not interested to replace the defective mobile set as he has already bought a new mobile set for his personal use. Hence, the O.P.No.3 is liable to refund the cost of mobile set i.e. Rs.9,600/- to the complainant and the O.P.No.2 is also liable to return the defective mobile set to the O.P.No.3 since the defect was not rectified even on repeated attempts made through the authorized service centre.
5. As far as the compensation and cost of the case is concerned, we would like to view that in this case the complainant has repeatedly run after the O.P. No.2 & 3 for repairing or replacement of his defective mobile set due to problem during warranty/ guarantee period but failed to yield any fruitful results. The complaint has faced physical problems and financial loss during that period since he was forced to buy a new mobile set for his personal use incurring extra financial burden and faced inconveniences. For this, we feel that it will be just and proper to pay Rs.3,000/- to the complainant by the O.P.No.3 towards compensation for financial loss, mental agony and harassment to meet the ends of justice in the fact and circumstance of the case since we have not allowed any interest on the cost of the mobile. Similarly, simultaneously we are also convinced to direct the O.P. No.3 to pay Rs.1,000/- to the complainant towards cost of litigation since he was forced to file this case in this Forum and incurred financial expenses towards attending the case including paying of court fees, logistic and clerical charges for preparing the complaint and attending the court dates for the last one year. In the light of foregoing discussions, following decision and taking into account to the fact and circumstances of the case, we allowed the case of complainant against O.P.No.2 & 3 and dismissed against O.P.No.1. Our finding is supported by the decision of the Hon’ble State Commission, Himachal Pradesh reported in II (2014) CPJ 23 (HP) in the case of Tarlok Chand Rajesh Kumar Vs. Harish Bhickta.
6. In the result, the case is allowed against O.P.No.2&3 and dismissed against O.P.No.1. The O.P.No.3 is directed to refund the cost of the defective mobile set i.e. Rs.9,600/- to the complainant and at the same time to pay Rs.3,000/- towards compensation for financial loss, mental agony and harassment. The O.P. No.3 is also directed to pay Rs.1,000/- towards cost of litigation to the complainant along with aforesaid amounts. Similarly, the O.P.No.2 is directed to return the defective mobile set of the complainant to the O.P.No.3. The O.P. No.2&3 are directed to comply the above orders within 45 days of receipt of this order failing which the complainant is at liberty to recover the same from the O.Ps under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this 27th day of September 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
