Haryana

Fatehabad

CC/123/2016

Anurag Aggarwal - Complainant(s)

Versus

M/S Tips Video Mobile - Opp.Party(s)

In Person

08 Jun 2016

ORDER

BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint Case No.123 of 2016.

Date of Instt.: 26.04.2016.

Date of Decision: 08.07.2016.

Anurag Aggarwal son of late Sh. R.D. Aggarwal, aged 46 years, resident of 211C, Ward No.3, Gadi Mohalla, Fatehabad.

 

..Complainant

     Versus

1. M/s Tips Video & Mobile Zone, DSP Road, Fatehabad.

2. Technominds Mobile, Shop No.100, Mobile Market, Palika Bazar, Fatehabad.

..Opposite parties.

Before:        Sh. Raghbir Singh, President.

                   Sh. Ranbir Singh Panghal, Member.

                   Smt. Ansuya Bishnoi, Member.

Present:       Complainant in person.

                   Opposite parties No.1 & 2 already exparte.

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.

2.                Brief facts of the present complaint are that complainant had purchased a mobile of LAVA company model Spark 249 from opposite party no.1 on 11.4.2016 for a sum of Rs.1300/- vide bill No.2650 dated 11.4.2016. It is further averred that when the complainant put sim cards in the mobile and switched on the same, its display showed nothing and its screen was blank. The complainant immediately on the same day complained to opposite party no.1 who stated that mobile would be replaced from LAVA company customer care. It is further averred that on the next day when complainant visited customer care, its officials told him that due to physical damage, the mobile is out of warranty and its approximate repair costs is Rs.494.15/-. It is further averred that there is not any mark or sign of physical damage of mobile. Due to the negligent act of the opposite parties, the complainant has suffered loss, harassment and mental agony. Therefore, the complainant is entitled to Rs.13,000/- as compensation, Rs.2600/- as costs and replacement of mobile with new one. Hence, this complaint.

3.                Upon notice, opposite party no.1 appeared in person and contested the complaint by filing reply asserting therein that opposite party no.1 sold the mobile in question to the complainant. The op no.1 is authorized dealer of the company and is not manufacturer of the mobile. The op no.1 has only sold the mobile to the complainant and cannot give any type of guarantee or warranty and whole responsibility about the mobile is of manufacturing company which has not been impleaded as a party. It has been further asserted that answering op had given the mobile in sealed box and after checking the same and complainant purchased the same after his full satisfaction, so now the op no.1 has no concern with the defect of the screen and display of the mobile. It has been further asserted that only company can replace the mobile of the complainant. The op no.1 has not caused any deficiency in service and is not liable to pay any compensation to the complainant and prayer for dismissal of the complaint has been made.

4.                Opposite party no.2 did not appear despite service and was proceeded against exparte.

5.                The complainant filed rejoinder to the reply of op no.1 stating therein that op no.1 has taken two contradictory stands as it has asserted that he had given sealed box and on the other hand it has been asserted that mobile was given after checking. The op no.1 is misleading this Forum.

6.                On 1.6.2016 none appeared on behalf of opposite party no.1, therefore, op no.1 was proceeded exparte.

7.                The complainant in his evidence has tendered his affidavit as Ex.CW1 and documents as Annexures C1 to C3.

8.                We have heard the complainant and have gone through the case file carefully.

9.                   It is established on the case file that complainant purchased the mobile in question from opposite party no.1 for a sum of Rs.1300/- vide cash memo No.2650 dated 11.4.2016, placed on file as annexure C1. The complainant has alleged that on the same day when he put sim cards in the mobile and switched on the same, its display showed nothing and its screen was blank. Then he visited to opposite party no.1 on the same day who asked him to go to the customer care i.e. opposite party no.2. It has been further alleged by the complainant that when he visited to LAVA company customer care where he was told that mobile is out of warranty due to physical damage. According to the complainant, the opposite party no.1 has sold a defective mobile to him. The opposite party no.1 took a stand that manufacturer is liable for any defect in the mobile but complainant has not impleaded the manufacturer as a party. He has also asserted that he had sold the mobile in question to the complainant in sealed box and at the time of purchase the complainant also checked the mobile. The complainant in support of his allegations has placed on file his affidavit wherein he has testified all the facts so set out by him in his complaint whereas opposite party no.1 after filing the reply has opted to be proceeded against exparte. The op no.1 has not placed on file his affidavit or any other document to prove his contentions. Therefore, the contention of the complainant that when he put the sim cards in the mobile at home and switched on the same, its display showed nothing and the screen was blank seems to be true and has to be believed. The opposite party no.1 has adopted unfair trade practice by selling a defective mobile to the complainant forcing him to visit the op no.1 again on the same day with the above said complaint in the mobile and then he had to visit customer care i.e. op no.2 on the next day of the purchase of the mobile. From the job sheet dated 12.4.2016 placed on file by the complainant as Annexure C2, it is evident that LCD (display) was broken. The complainant might have purchased the mobile in question from the opposite party no.1 with the hope that being a new mobile, it will work properly but he could not use the same even for a single day. No doubt, the warranty/guarantee of a product is given by the manufacturer but the above said plea may be available to the opposite party no.1 if the mobile in question would have worked properly for few days/ months and after use some defect would have occurred but in the present case the opposite party no.1 has adopted unfair trade practice by selling a defective mobile with malafide intention. So, the opposite party No.1 i.e. dealer cannot absolve from its liability. Reliance in this regard can also be placed on the observations of the Hon’ble National Commission in case titled as M.Subba Rao Prop. M/s. Sri Krishna Seeds Versus Avula Venkata Reddy passed in Appeal No.135/99 decided on 22.3.2007 wherein it was held that “However, learned counsel appearing on behalf of the petitioner submits that petitioner is a dealer and he is not personally liable for defective seeds and therefore order ought not to have been passed against him without joining manufacturing firm as party, namely, Hindustan Seeds Corporation. In our view, no doubt, the manufacturer would have been a proper party but at the same time the Petitioner is a person who has supplied and sold the seeds to the complainant, therefore, complaint was maintainable against the petitioner. If petitioner has any grievance, it is open to the petitioner to recover the amount ordered from the manufacturer by filing appropriate proceedings, but it cannot be said that the petitioner, a dealer, who has sold the seeds, is not liable.”

10.              Keeping in view the facts and circumstances of the case and in view of the above said legal proposition, the complainant cannot be asked to pay Rs.494/- for repair of a new mobile and the complainant is entitled to refund of the price of the mobile in question from opposite party no.1. Thus, we allow the present complaint against opposite party no.1 and direct the opposite party No.1 to refund the price of the mobile in question i.e.Rs.1300/- to the complainant and further to pay a sum of Rs.1000/- in lump sum as compensation for harassment etc. The complainant will have to hand over the mobile in question to op no.1.  Compliance of this order be made within one month, failing which penal action under Section 27 of the Consumer Protection Act, 1986 would be initiated against the opposite party No.1. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.

ANNOUNCED IN OPEN FORUM                            

Dt.08.07.2016.

 

                                                         

(R.S.Panghal)      (Ansuya Bishnoi)           (Raghbir Singh)

   Member.           Member.                        President   

                                                          District Consumer Disputes

                                                          Redressal Forum,          Fatehabad.