Sh.Anoop Sharma, Presiding Member

1.       Sh.Dinesh Sharma has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that

he purchased mobile HTC Desire 829 Dual SIM 354920065035876 (white vide bill dated 28.2.2016 for Rs.24, 499/- from Opposite Party No.1, hence the complainant is consumer under the Act. The Opposite Party has issued old mobile set and when the mobile set develops defect the complainant went to the Opposite Party for removal of defect and the Opposite Party demanded the amount for repair charges as the guarantee period has expired and the Mobile Set was issued mobile of 2014 old set. The complainant requested the Opposite Party No.1 for replacement of the Mobile Set in question with new but, but the Opposite Party No.1 is avoiding the matter with one excuse or the other and the complainant referred the matter to SHO, PS Ranjit Avenue, Amritsar on 7.2.2017 regarding committing fraud and the Opposite Party was called at the police post and asked for time upto 20.2.2017 and again on 21.2.2017 the complainant went to the police post Ranjit Avenue, Amritsar and the Opposite Party  told that the Mobile Set in question will be repaired and guarantee for one year will be extended, but the complainant did not agree with this proposal. Hence, there is deficiency in service on the part of the Opposite Parties.   Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party No.1 be directed to replace the Mobile Set in question with new one.

b)      Compensation of Rs.30,000/- be also granted to the complainant.

c)       Costs of the complaint be also granted to the complainant.

d)      Any other relief in the alternative which this Forum may deem fit and just be also granted.           

Hence, this complaint.

2.       Upon notice, Opposite Parties No.1 and 2  appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that Opposite Party No.1 is a store from where the complainant purchased the Mobile Set in question and Opposite Party No.2 is the Regional Office of Opposite Party No.1 who has no role in the day to day transactions done at the store of Opposite Party No.1. The present complaint is not maintainable against the Opposite Parties No.1 and 2 as it is a seller of various electronic items of many manufacturers at its stores only like Sony, Apple, LG, Samsung including HTC etc. Whenever a customer asks for or wants to buy or know about some device or product, the Opposite Party No.1 apprise them of the various features of the product to the customer, as per the literature of the product. Thus, the involvement of the Opposite Parties is limited and therefore, cannot result in a disproportionate liability. It is submitted that the Opposite Parties are not the manufacturer of the Mobile Set in question, hence is not responsible for removal of alleged defect in its product and which from any stretch of imagination can not be fastened on the retailer i.e. Opposite Party No.1. The present complaint is not maintainable against Opposite Parties No.1 and 2 as no cause of action has arisen against Opposite Parties No.1 and 2. The complainant when approached Opposite Party No.1 alleging the defect in the device, Opposite Party No.1 promptly guided the complainant to visit the service centre of the manufacturer,  but the customer was not ready for the same. The complainant made one oral complaint with P.S. located at Ranjit Avenue, Amritsar wherein the Store Manager was called by the concerned SHO wherein it was agreed between the store manager of Opposite Party No.1 and the complainant that the complainant would hand over the device with alleged defect to the Store Manager of Opposite Party No.1 who would get the defect rectified from the authorised service centre of HTC. On the insistence of the complainant, the warranty was also extended for another year by the manufacturer i.e. HTC. The store manager of Opposite Party No.1 carried the phone to the service centre of HTC, but the engineer of service centre could not detect any defect in the device of the complainant and the complainant refused to inform about any defect in the device in question. On merits, the Opposite Parties took the same and similar pleas as taken up by them in the preliminary objections.  Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C 4  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh.Gurpreet Singh, Store Manager Ex.OP1 and  closed the evidence on behalf of the Opposite Parties.

5.       We have heard the complainant and  ld.counsel for the Opposite Parties and have carefully gone through the evidence on record.

6.       The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and submitted that he purchased mobile HTC Desire 829 Dual SIM 354920065035876 (white vide bill dated 28.2.2016 for Rs.24, 499/- from Opposite Party No.1, hence the complainant is consumer under the Act. The Opposite Party has issued old mobile set and when the mobile set develops defect the complainant went to the Opposite Party for removal of defect and the Opposite Party demanded the amount for repair charges as the guarantee period has expired and the Mobile Set was issued mobile of 2014 old set. The complainant requested the Opposite Party No.1 for replacement of the Mobile Set in question with new but, but the Opposite Party No.1 is avoiding the matter with one excuse or the other and the complainant referred the matter to SHO, PS Ranjit Avenue, Amritsar on 7.2.2017 regarding committing fraud and the Opposite Party was called at the police post and asked for time upto 20.2.2017 and again on 21.2.2017 the complainant went to the police post Ranjit Avenue, Amritsar and the Opposite Party  told that the Mobile Set in question will be repaired and guarantee for one year will be extended, but the complainant did not agree with this proposal. Hence, there is deficiency in service on the part of the Opposite Parties.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid  contention of the complainant and submitted that Opposite Party No.1 is a store from where the complainant purchased the Mobile Set in question and Opposite Party No.2 is the Regional Office of Opposite Party No.1 who has no role in the day to day transactions done at the store of Opposite Party No.1. The present complaint is not maintainable against the Opposite Parties No.1 and 2 as it is a seller of various electronic items of many manufacturers at its stores only like Sony, Apple, LG, Samsung including HTC etc. Whenever a customer asks for or wants to buy or know about some device or product, the Opposite Party No.1 apprise them of the various features of the product to the customer, as per the literature of the product. Thus, the involvement of the Opposite Parties is limited and therefore, cannot result in a disproportionate liability. It is submitted that the Opposite Parties are not the manufacturer of the Mobile Set in question, hence is not responsible for removal of alleged defect in its product and which from any stretch of imagination can not be fastened on the retailer i.e. Opposite Party No.1. The present complaint is not maintainable against Opposite Parties No.1 and 2 as no cause of action has arisen against Opposite Parties No.1 and 2. The complainant when approached Opposite Party No.1 alleging the defect in the device, Opposite Party No.1 promptly guided the complainant to visit the service centre of the manufacturer,  but the customer was not ready for the same. The complainant made one oral complaint with P.S. located at Ranjit Avenue, Amritsar wherein the Store Manager was called by the concerned SHO wherein it was agreed between the store manager of Opposite Party No.1 and the complainant that the complainant would hand over the device with alleged defect to the Store Manager of Opposite Party No.1 who would get the defect rectified from the authorised service centre of HTC. On the insistence of the complainant, the warranty was also extended for another year by the manufacturer i.e. HTC. The store manager of Opposite Party No.1 carried the phone to the service centre of HTC, but the engineer of service centre could not detect any defect in the device of the complainant and the complainant refused to inform about any defect in the device in question.

8.       There is no denial of the facts that the complainant  purchased mobile HTC Desire 829 Dual SIM 354920065035876 (white vide bill dated 28.2.2016 for Rs.24, 499/- from Opposite Party No.1, copy of bill accounts for Ex.C2. The main contention of the complainant is that  the Opposite Party has issued old mobile set and when the mobile set developed  defect the complainant went to the Opposite Party for removal of defect and the Opposite Party demanded the amount for repair charges as the guarantee period has expired and the Mobile Set was issued mobile of 2014 old set. The complainant requested the Opposite Party No.1 for replacement of the Mobile Set in question with new but, but the Opposite Party No.1 is avoiding the matter with one excuse or the other. The complaint lodged with  SHO, PS Ranjit Avenue, Amritsar on 7.2.2017 regarding committing fraud is also  not denied by the parties. The only contention of the complainant is that the Opposite Party No.1 has issued him the Mobile Set in question of 2014 old set. On the other hand, the Opposite Parties has not denied this factum nor filed any denial in the written statement filed by them. So, it is settled law that if the specific allegation is not denied, the same is to be admitted as correct. Moreover, if the said Mobile Set was not having any guarantee or warranty, then why the Opposite Parties were made ready to give the warranty of one year more and to remove the defect without any charges out of warranty period before the police authority. Hence, it is seems that there is some hanky panky with the sale of the Mobile Set in question to the complainant. In view of this, there is certainly a deficiency in service on the part of the Opposite Parties.

9.       In view of the aforesaid facts and circumstances of the case, we direct the Opposite Parties jointly and severally to replace the Mobile Set in question with new one of same make and model or if the said Mobile Set having same make and model is not available with Opposite Parties, then the Opposite Parties shall refund its price to the complainant. Opposite Parties are also directed to pay Rs.3000/- on account of compensation for causing mental tension and harassment besides Rs.2000/- as costs of litigation. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum