JUDGEMENT

          Complainant by filing this complaint has submitted that with a need to purchase of a new mobile phone complainant visited the shop of op no.1 on 30.07.2013 a reputed electronic shop at 22, Lindsay Street, Kolkata – 700087 and after discussion he purchased a phone from the said shop op no.1 vide Invoice No. 42618 dated 30.07.2013 being Model No. X2-02 made of Nokia and at the time of purchase it was represented by op no.1 having super speciality of service.

          On purchase of the same from op no.1, complainant after using it for seven months found that the entire item is highly defective one having no clear sound and the battery back-up is also poor.  Having such sort of defects, complainant was confirmed that op no.1 by unfair trade practice sold the defective mobile to the complainant and so requested the op no.1 to return back the same and also called for op no.2 to change the mobile phone on 20.02.2014.  Complainant repeatedly contacted with op no.2, but all in vain.  Though they received the same three times for the purpose of repair but could not do that, moreover harassed the complainant for long time and unfortunately both op nos. 1 & 2 misbehaved to the complainant and complainant finding no other alternative sent letters on 13.03.2014 narrating all the facts with a prayer of remedial measures.  But even then they did not take any step for which complainant was compelled to file this complaint for proper relief and in the prayer portion complainant has prayed for directing the op no.1 to return back the defective mobile phone and directing the op no.2 for compensation of Rs. 5,000/- and both op nos. 1 & 2 for compensation and litigation cost etc.

          On the other hand URFEE’s op no.1 by filing written reply before this Forum has stated that no doubt the complainant purchased the same with one year manufacturer warranty and any relief to any service the complainant is entitled to get service from authorized service centre from Kolkata and his allegation is against service centre who did not give proper service and as a seller, he has nothing to do and the present complaint ought to have been filed against Nokia Pvt. Ltd. as service provider and manufacturer and in fact op no.1 never sold anything without warranty, so the present complaint should be dismissed against op no.1.

          On the other hand op no.2 Everest Mobicare by filing a written reply submitted that complainant as customer has visited the customer care on 20.02.2014 for the problem of battery back-up issue and as per their diagnosis there was no fault found in the device and op gave delivery of the same on very day and lastly complainant visited on 11.03.2014 with the same complaint and there was no fault detected and it is their submission that for continuous four hours in a day during 10am to 7 pm and on all occasions the handset had no fault detected and this was the reply of the Deputy Director, Govt. of W.B., Consumer Affairs also.

          On the other hand Everest Mobicare has reported in writing that on 19.05.2014 that the same version has submitted before the authority and they have stated that the complainant is not willing to receive back the said set for which it is lying in the op no.2’s custody and complainant was requested to receive back it, but complainant did not receive back it, but filed this complaint.  In the above situation the necessary order may be passed so that the complainant may receive it and the matter will be disposed of.

                                                          Decision with reasons

          On proper consideration of the entire complaint and the written version or the reporting of the ops, it is clear that complainant purchased the said mobile set from op no.1 and that set’s model No. X2-02 and that was purchased on 30.07.2013.  Moreover it is found that the present complaint was filed before this Forum on 07.04.2014 and fact remains that warranty period expired on 30.07.2014.  But during that period just after use of the said mobile phone for continuous seven months, complainant in the handset he faced some problem and from the op no. 2’s version, it is clear that op twice inspected the said mobile set and found that battery back-up was not poor and it was quite okay and at the same time op did not get any sort of defect in the said handset and in all occasions complainant received back the same and ultimately on last occasion complainant did not turn up to receive back the same for which apparently no deficiency on the part of the op nos. 1 & 2 are found.  But in the present case complainant has claimed for return of the said mobile set from op no.1.

          But fact remains in the present case the manufacturer is not made a party but service centre has made a party as op no.2 who has already properly checked and detected and found no defect.  In the above situation we find that complainant is not in a mood to take back the same from the service provider but it is not the correct approach on the part of the complainant and op no.2 service centre has reported to this Forum in writing that after several checking it was detected that there was no defect.  But complainant is not willing to take back it.  Anyhow the complainant failed to produce any document that there is any manufacturing defect.  At the same time manufacturer is not made a party.

          So, in the above circumstances, we are directing the complainant to receive back the said handset from the ops and op no.2 shall have to note down in the job card or any certificate that it is free from any defect at the time of handing over the set to the complainant and in this regard both ops shall have to give such certificate that the said set is free from any defect and further op no.2 is hereby directed to check-up the said mobile handset again and hand over a certificate from his service centre with the said handset which is free from all defects and there is no manufacturing defect.

          In the above situation we are disposing of this complaint passing such necessary order.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is allowed on contest against the ops with a cost of Rs. 2,000/- which shall be paid by the op nos. 1 & 2 jointly and severally.

          Ops are hereby directed to handover this mobile handset to the complainant after proper testing and checking in running condition along with a certificate of op no.2 that there is no manufacturing defect in respect of said mobile hand set and that mobile hand set does not suffer from any defect.

          Ops are directed to handover the same within 15 days from the date of the appearance of the complainant before the op no.2’s Mobicare, Service Centre and in all respect op nos. 1 & 2 shall have to helpful to the complainant for getting the said mobile handset in running condition with such certificate.

          Complainant is directed to go to the service centre to receive the same along with such certificate as it is issued by the op nos. 1 & 2 in this regard.  If the order is not complied in that case this Forum shall have to take such penal action for which they shall have to pay penal damages to the extent of Rs. 5,000/- and for which they shall be liable.