Order No. 23 dt. 12/09/2017
The case of the complainant in brief is that the complainant purchased on 15.12.2012 one Nokia Mobile set on payment of Rs.6,000/-. After purchase of the said mobile the complainant noticed that it was not working properly. Accordingly the complainant went to M/s A N Mobile Telecom Pvt Ltd and handed over the said mobile set which was received by said service centre. After receiving the said set the job sheet was issued. The complainant thereafter received the repaired mobile set but within a few days the said mobile set went out of order and contacted the service centre wherefrom on three occasions job sheet were issued. Because of such recurring defects and while it was brought to the notice of the manufacturer a new mobile set was replaced with the same made. But it was noticed that within a few days the complainant had to face the same problem since the complainant is an advocate and she suffered professional loss for which the complainant filed this case praying for refund of the value of the mobile phone and compensation of Rs.7,00,000/-.
The o.p.no.3 contested the case by filing w/v denied all the material allegations of the complaint. It was stated that the complainant repeatedly complained of operation problem, visited the service centre of the o.p. and the o.p. in order to maintain the goodwill of the company replaced the said mobile set with a new one on 10.06.2013. The complainant even after getting replacement of the said handset continued act of internet surfing without installing proper antivirus for which the said set got infected and thereafter the o.p. had sent the said mobile phone to it’s head office at Gurgaon for thorough check up. Complainant was provided with a standby set the complainant thereafter did not turn up to receive the said handset even the answering the o.p. stated to her another replacement will be given if she so desires. The complainant due to her reckless use has caused problem in the said mobile set. Since the complainant had subjected the said mobile handset into internet virus, the said mobile set started malfunctioning. There was no fault in the said mobile set and thereby the o.p.no.3 prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:-
- Whether the complainant purchased mobile set manufactured by o.p.no.1?
- Whether the said mobile set caused defect during the time of operating the said set?
- Whether there was any deficiency in service on the part of the o.ps?
- Whether the complainant will be entitled to get any relief as prayed for?
Decision with reasons :-
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant purchased on 15.12.2012 one Nokia Mobile set on payment of Rs.6,000/-. After purchase of the said mobile the complainant noticed that it was not working properly. Accordingly the complainant went to M/s A N Mobile Telecom Pvt Ltd and handed over the said mobile set which was received by said service centre. After receiving the said set the job sheet was issued. The complainant thereafter received the repaired mobile set but within a few days the said mobile set went out of order and contacted the service centre wherefrom on three occasions job sheet were issued. Because of such recurring defects and while it was brought to the notice of the manufacturer a new mobile set was replaced with the same made. But it was noticed that within a few days the complainant had to face the same problem since the complainant is an advocate and she suffered professional loss for which the complainant filed this case praying for refund of the value of the mobile phone and compensation of Rs.7,00,000/-.
Ld. lawyer for the o.p. no.3 argued that the complainant as soon as the o.p.no.3 found that the complainant was creating trouble by repeatedly making allegations that the mobile set was not functioning a new set was provided to her but within a short while she again made allegation that the mobile set was not functioning. On examination of the set o.p.no.3 found that the complainant mishandled the said phone as she presumably connected the said phone with internet and by that process the said phone got virus affected. The o.p.no.3 sent the said the set to their head office at Gurgaon and o.p.no.3 also agreed to provide another set as a stop gap arrangement but the complainant did not visit the office of o.p.no.3 to receive the said set. There was no deficiency in service on the part of the o.p.no.3 for which the said o.p. prayed for dismissal of the case.
Considering the submissions of the respective parties it is an admitted fact that the complainant purchased the mobile set from o.p.no.3 at a price of Rs.6,000/-. It is also an admitted fact that after purchase during the operation of the said mobile set the complainant found there was some error in the said mobile set for which the complainant contacted o.p.3 and the said was repaired. After receiving the set the complainant noticed that the problem which the complainant faced earlier recurred. The complainant went to o.p.3 and brought to their notice regarding the problem. The o.p.3 on seeing such problems faced by the complainant provided her with a new set. The complainant after receiving the new set was not satisfied with the functioning with the said set and further visited the o.p.3 service centre. The service engineer did not find in any defect in the said set. It was detected by the service engineer that due to mis-handling of the said phone as she presumably connected the said phone with internet and by that process the said phone got virus infected. In view of such fact the o.p.no.3 wanted to send the said phone to their head office at Gurgaon and in the mean time as a stop gap arrangement the o.p.2 wanted to provide the complainant with another set but the complainant did not agree to such proposal made by o.p.2. The complainant in order to proof that the mobile set had the manufacturing defect could not produce any expert’s opinion to that effect. The problem occurred after using the mobile set for some months. These problems can arise while regular use of mobile as such it cannot be said that the mobile set had manufacturing defect. In this respect we can rely on decision as reported in 2017(1) CPR 643 NC wherein it was held that manufacturing defect must be proved by expert opinion, on the contrary we find that due to mishandling of the mobile set and the effort made by the complainant for connecting the said phone with internet and by that process the said phone got virus infected. The complainant has claimed compensation of Rs.7,00,000/- for her professional loss. In order to substantiate her said claim she failed to produce any document such as professional tax receipt or income tax return as such we hold that the complainant for the purpose of seeking compensation deliberately created problem in the mobile set herself in order to make ground for filing a case before CDRF. Having regard to such background of the case we hold that the complainant has not come with clean hands and thereby she will not be entitled get any relief as prayed for.
Thus all the points are disposed of accordingly.
Hence, ordered.
that the case no.476/2013 is dismissed on contest without cost.
Supply certified copy of this order to the parties free of cost.
