Date of Filing: 21.06.2013. Date of Final Order: 29.05.2014
The case of the complainant Mr. Nilkamal Das, a businessman aged 25 years, is that on 30-06-2012 he purchased a Micromax X-285 Model Mobile Set, with battery & Charger, from the Showroom of Micromax Mobile of New Mobile Corner, 164-Biswa Singha Road, Cooch Behar (O.P.No.1), at Rs.2,300/-, who assured service, from Service Centre of Micromax Mobile vide. Mahamaya Servicing Centre, Cooch Behar,(O.P. No.2). From the date of purchasing of the handset, there was disturbance in operational functioning & keypad. He went to Roy Plaza for changing the said mobile phone who advised him to go for service from Service Centre of Micromax Mobile i.e. Mahamaya Servicing Centre, Cooch Behar,(O.P.No.2). He contacted the service centre in August, 2012 for repairing the same. It was received therein and returned to him after repairing. Meanwhile, on 24-04-2013 & 09-05-2013 he sent the mobile set to O.P.No.2 for repairing; but even after repairing some related problems cropped up due to manufacturing defects, within the warranty period. He made several contacts personally/over phone with the O.Ps 1 & 2 narrating the incidents, with request to replace the defective Mobile Set or solve the defects; but in vain. He faced hindrance, sufferings resulting to irreparable loss, harassment, acute mental pain, agony, pecuniary loss & unnecessary harassment due to deficiency in service & unfair trade practice of the O.Ps. Hence, he filed the instant case before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) re-place the Mobile Set free of cost or refund Rs,2,300/-, (2) Pay compensation of Rs.25,000/-for business loss, mental pain, agony & unnecessary harassment, (3) Rs.25,000/- for deficiency in service& unfair trade practice, (4) Rs.5,000/- towards litigation cost, besides other relief(s) as the Forum deem fit as per law & equity.
He filed the complaint on 17-06-2013 before this Forum enclosing the Tax Invoice of Roy Plaza dated 30-06-2012 in respect of the mobile Set,(Annexure-‘A’), Customer Details-cum- Warranty Card dated 30-06-13(Annexure-‘B’), an Affidavit before Ld. Notary dated 17-06-13, an ‘Agentnama’ appointing Ld. Adv. Mr. Madan Mohan Ghosh, to conduct the case and one I.P.O. of Rs.100/-.
Accordingly, DF Case No.59/2013 was registered. After admission hearing, 11-07-2013 was fixed for S/R and appearance. On that date, for the O.P. No.1 i.e. ‘New Mobile Corner’, Mr. Biplab Kumar Saha, by a petition in person submitted verbally for time to file his written version. Thereafter, he appeared through his Ld. Adv. Mr. Himadri Sekhar Roy on 06-08-2013 by filing an ‘Agentnama’. On the said date, for the O.P.No.2 i.e. Mahamaya Service Centre also Mr. Abhijit Saha entered his appearance through his Ld. Adv. Mr. Siddhartha Sarkar who prayed for time in writing. Accordingly, 25-07-2013 was fixed for filing W/Vs. On that date the O.P.No.1 was absent without step. The W/V for the O.P.No.2 was filed through his Ld. Adv. after service of copy to the Complainant. 06-08-2013 was fixed for W/V of the O.P.No.1. On that date the O.P.No.1 filed his W/V after service of copy to the complainant & also filed ‘Agentnama’ through his Ld. Adv. The O.P.No.2 was absent without step. 22-08-2013 was fixed for filing Evidence by the Parties in contest.
On 22-08-2013 both the O.Ps declined to file their Evidence and hence, 16-09-2013 was fixed for argument with direction to file written argument, 2 days prior to the date fixed. On that date the O.Ps by separate petitions prayed for time for argument. For the complainant a prayer was filed to add “Micromax Informatics Ltd.” as a necessary Party which was allowed directing the complainant to take step, fixing 08-10-2013 for S/R and appearance of the added O.P. vide No.3. 18-11-2013 was fixed for the S/R, appearance & W/V of O.P.No.3. Due to want of quorum 09-12-2013 was fixed for the S/R, appearance & W/V of O.P.No.3. On that date for the O.P.No.2 afresh ‘Agentnama’ was filed appointing Mr. Himadri Sekhar Roy to conduct his case. 27-12-2013 was fixed for the S/R, appearance & W/V of O.P.No.3. On that date the A/D against Notice against the O.P.No.3, received served, but he did not turn up and his case was taken up in Ex-Parte. 17-01-2014 was fixed for filing W/V by the O.Ps No.1 & 2. For the O.Ps No.1 & 2, time was prayed for, to file Evidence which was allowed, fixing 11-02-14 for argument with liberty to file W/V, Evidence & Written argument.
On that date the O.Ps took time to file their evidence which was allowed fixing 20-02-2014, with direction to file evidence and written argument together. On that day for the complainant his evidence was filed, stating to treat his complaint as exhibit-1 and two documents filed in original, as Exhibits-2 & 3. 11-03-2014 was fixed for argument, W/V, evidence if any, considering the nature & gravity of the case. On that date & also on 28-03-2014, all the parties, except O.P. No.3, took time to file written arguments and 25-04-2014 was fixed. On that date the Ld. Adv. for the complainant submitted as to being the case amicably settled within 3 weeks, whereas, the Ld. Advocates filed written argument for O.P. No.1 & 2. At this juncture, Ld. Advocate Mr. Dhrubajyoti Karmakar filed ‘Vakalatnama’ for the O.P. No.3 and verbally contended to replace the defective mobile handset and prayed for time which was allowed, fixing 19-05-2014, subject to filing W/V, evidence with written argument at the event of failure in amicable settlement, as a must. On that date written argument filed for the complainant; but O.P. Nos.1 & 2 were absent without step and none respondent on repeated calls. Hence, this day (29-05-2014) was fixed for Final Order and consideration of punitive cost for such dilatory tactics by remaining absent & not taking steps by them.
It is transparent that the petition of complaint, as to “Consumer Disputes” has been discussed herein before. Now, from the written version of the O.P. it appears that the allegation has been denied in various languages; but contended that the company is a necessary party to say about the defects, if there be any at all but simultaneously, he denied the alleged defects and claimed that all the due services were rendered to the complainant by repairing works. He has alleged against the complaint stating the same as vague, false and as such denied and prayed for dismissing the case with cost for ends of justice. The O.P. No.1, by a petition under signature & seal of Roy Plaza, as a Proprietor, stated that Mr. Nilkamal Das had neither personally nor over phone contacted him either by going to his shop or over phone for service of the said mobile. The Micromax Company has its own service centre at R.N. Road, Cooch Behar to provide service of mobile within warranty period and as such he is not liable for the service.
Written argument, without filling written version for the O.P. No.1 & 2, filed herein on 25-04-2014 speaks that O.P. No.1 deals in mobile of different companies and the complainant purchased the Micromax X-285 model mobile and accessories with full satisfaction. He stated that Micromax Mobile Company has its service centre at Cooch Behar which is for providing service to the customers and not the seller, as per warranty. He alleged that the problems arose due to lack of proper knowledge in use/mishandling, without following user guide and the defects arose due to such causes of handling & virus attack in software by excessive pressure on key pad. He alleged that the complainant, for illegal gain had projected such falls story of deficiency in service and unfair trade practice against the O.P. He has stated that the complainants of the instant case and the Case No. DF-53/2013, are full blood brothers and they in connivance filed this two cases for illegal gain, bargaining and squeeze money from the O.P. by foul play. Further, for the O.P. No.2 it has been argued that he supported all the points of O.P. No.1 and claimed that he provided services, as an when the complainant produced the said handset at his service centre, after thorough checkup and after full satisfaction he handed over the said mobile to the complainant as such he caused no deficiency in service. The mobile set, having multifarious functions, being roughly used invited such problems. He further assailed that the complainant has not filed any iota of document/evidence of any expert to substantiate the alleged manufacturing defects. Hence, he also prayed for dismissal of the complaint.
For the complainant, the written argument dated 19-05-2014, does not speak arguing against the points, argued for the O.P. Nos.1 & 2; but it is almost replica his petition of complaint.
The complaint & other documents filed for the complainant are marked Exhibits, for the sake of gravity of discussion and identification of those documents as bellow:
Exhibit-1. Petition of complaint dated 21-06-2014.
Exhibit-2. Original Tax Invoice No.347 dated 30-06-2012 of Roy Plaza in respect of the Micromax X-285 at Rs.2,300/- (including vat).
Exhibit-3. Customer details cum Warranty Card of the mobile bearing particulars of the mobile and customer details of New Mobile Corner, Cooch Behar.
From the discussion hereinabove, we find the following issues/points for consideration.
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant Nilkamal Das is a ‘Consumers’ of the O.P. Nos.1 to 3?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether the O.Ps carried on ‘unfair trade practice’/rendered any deficiency in service towards the Complainant?
- Whether the complainant proved his case against the O.Ps, alleged and whether the O.Ps are liable for compensation to him?
- Whether the complainant is entitled to relief(s) prayed for?
- Whether the parties in contest are liable to pay any punitive cost for delaying the proceedings?
DECISSION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
Point No.1. Whether the Complainant Nilkamal Das is a ‘Consumers’ of the O.P. Nos.1 to 3?
From the discussion it is transparent that the complainant is directly a consumer of the O.P. No.1 i.e. New Mobile Corner. He is also consumer of the O.P. No.3 i.e. Micromax Informatics Ltd. as being the manufacturing/marketing company besides its service centre, at Cooch Behar; but not the O.P. No.2 i.e. Mahamaya Servicing Centre. It is not transparent as to why and how the complainant could avail the Customer service without Job Card of the O.P. No.2. There is no averment of the complainant against the O.P. No.2 that he got his mobile set repaired there on payment of any consideration. It may reasonably be presumed that due to good conscience of the O.P. No.1, the O.P. No.2 entertained the complainant and for that reasonably he cannot be treated as consumer of O.P. No.2.
Point No.2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and O.P. No.1 & 2 are residents/carrying on business within the district of Cooch Behar. The complaint valued at Rs.57,300/- at valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
Point No.3. Whether the O.Ps carried on ‘unfair trade practice’/rendered any deficiency in service towards the Complainant?
There is no iota of evidence that the O.P. Nos.1 & 2 practiced their business in unfair manner, rather the O.P. No.2, at instance of the O.P. No.1 reasonably for good relation with O.P. No.2, might have under taken the job of repairing of the mobile set, even if not being the authorized service centre of the Micromax company i.e. the manufacturer/marketing company. Within the period of warranty, the complainant should have gone to the authorize service centre of the said company as per Warranty Card. The service centers are authorized by the concerned companies for rendering service to the customers of the company and not of the authorized dealer/seller of the goods in the market. Hence, the authorized dealer/seller should not be and cannot be held liable for any deficiency in service. The O.P. No.1 sold the mobile set on receipt of price of the mobile together with vat. So, it cannot be said, though may be alleged as to unfair trade practice/deficiency in service. Hence, we find no reason to find the O.P. No.1 liability either for unfair trade practice or for deficiency in service. Further, no allegation has been proved against the O.P. No.2 in respect of above unfair trade practice/deficiency in service as the complainant has not availed the repairing of the mobile from O.P. No.2 against consideration i.e. against money. The point that the O.P. No.1 assured the complainant may reasonably be believed that he had given assurance as to necessary servicing of the mobile set if there arises any normal/general defect and accordingly it has been complied with. Further, if there was any manufacturing defect the branded company may be held liable but not the not the dealer if he had sold the same by demonstration of the goods, because manufacturing/marketing, selling are not identical if the manufacturer/marketer is a branded company.
Here the complainant at later stage added the branded company as O.P. No.3 who entered appearance through his Ld. Advocate, contending replacement of the alleged defective mobile; but the complainant has not taken any step to get the mobile set examined and opined as to the defect. So, apparently the O.P. No.3 also cannot be held liable for deficiency in service. At best, for achieving good reputation and increase of sale might have offered replacement of the mobile set, admitting manufacturing defect of this set. But it invites the legal proposition that admitted fact need not be proved. Hence, admission of defects of the set & contention to replace the same proved that the set was defective. The warranty card provides parts only and not the set.
Point No.4. Whether the complainant proved his case against the O.Ps as alleged and whether the O.Ps, are liable to pay compensation to him?
In view of above discussion, we find no cogent ground that the complainant has proved his case against all the O.Ps, as alleged and liable to compensate the complainant but we may obviously hold the O.P.Nos.1 & 3 liable for compensation to him.
Point No.5. Whether the complainant is entitled to relief(s) prayed for?
The complainant, as such, is not entitled to any relief in view of the materials on record, fact and circumstances; but at best he may get the mobile set repaired at the said branded companies authorized service centre in which the O.P. No.1 & 3 may be directed to cooperate and see that the goodwill of the trader does not come in question to such complainant who himself is a businessman. The Consumer Disputes Redressal Forums are meant for providing redress to consumer disputes; but it is not the jackpot/lottery centre to expect compensation of Rs.57,300/- in total against the mobile set purchased at Rs.2,300/- and that also after using for some days though alleged that this set started disturbance right from the date of purchase. Allegation is not proof. One cannot shift one’s own wrong to the shoulder of others to achieve any benefit or the like. As to litigation cost the parties should bear their own cost for their acts/omissions. But for not taking proper and adequate steps, remaining absent on the dates of hearing and thereby delaying the proceedings of the Forum, obviously calls for punitive cost to the parties concerned payable to the State Consumer Welfare Fund, West Bengal. Simultaneously, making a party in the case without any reasonable cause also equally calls for punitive cost. The identity of the two complainants are full blood brothers vide of this case and DF Case NO.53/2013 is established and there disputes are more or less identical in respect of the mobile sets; but placed before the Forum in different form. Inspite of the above in the eye of law, balance of convenience and inconvenience in respect of the purpose of the C.P. Act, 1986, Rules, 1987 and Regulations, 2005, there under it is consumer friendly and dispute if any relating to the goods and/or service should be considered in that outlook. In the instant case it cannot be said that a man of common prudence would take the toil of embarrassment and filing a case, languish before it for redress without any genuine dispute/cause of action. The O.Ps though stated in various words against the complaint and the complainant but there is no averment at any point of time or a prayer u/s 26 of the C.P. Act to dismiss the case on frivolous and/or vexatious ground. The complainant engaged his Ld. Advocate and might have incurred expenses thereby may obviously be believed that it was not on his part as a part of business, leaving his own business suffered, had the O.Ps provided reasonable service to him. As such, finally we have no hesitation to come to a decision that the O.P. Nos.1 & 3 has jointly/severally contributed deficiency in service by act/omission and not providing reasonable service available. Hence, the O.P. No.1 & 3 is held liable. O.P. No.2 is immune, in view of his role played. Simultaneously, it may reasonably be presumed from the contention of the Ld. Advocate for the O.P.No.3 on the very day of the appearance of the O.P. No.3 that the defective mobile set would be replaced is nothing but admission of the manufacturing-defect of the mobile set and admitted fact need not be proved. As such he entitled to reasonable relief(s).
Point No.6. Whether the parties in contest are liable to pay any punitive cost for delaying the proceedings?
From the discussion herein above we find that the complainant is liable for adding the O.P. No.2 unnecessarily and the O.P. No.1 & 3 are liable for taking so many adjournments on various plea/lame-excuse and dragging the proceedings. Hence, indiscriminately reasonable punitive cost should be imposed to deter such complainant/ O.Ps to neglect/disobey the Forum, Law & Procedure, Rules & Regulations in terms of the C.P. Act, 1986, Rules & Regulations there under.
ORDER
Therefore, it is ordered that the complaint do succeed in part and the same is allowed, directing the Opposite Party No.1 & 3 i.e. New Mobile Corner, Cooch Behar and Micromax Informatics Ltd. to pay the reasonable compensation of Rs.1,000/-each to the complainant Mr. Nilkamal Das, jointly and/or severally within 60 days of this order, failure of which they shall pay @ Rs.10/- each for each day’s delay, on expiry of the aforesaid period of 60 days, if any, by depositing the amount in the State Consumer Welfare Fund, West Bengal, if accrued, due to such delay.
It is further order that the complainant as well as the O.P. Nos.1 to 3 shall pay punitive cost @ Rs.200/- as a token by depositing the same in the State Consumer Welfare Fund, West Bengal for dilatory tactics by taking numerous adjournments by taking time and/or remaining absent without steps on different dates. The complainant shall also pay Rs.500/- to the O.P.No.2 for unnecessarily making him party to this case. The O.P.No.3 shall get the mobile set once repaired or provide replacement of part/s only in terms of the warranty, even if now, beyond the warranty period and within aforesaid 60 days & in this regard the complainant as well as the O.P. No.1 shall take initiative.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/ be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
