BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.267/2017

DATED ON THIS THE 4^th May 2018

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

                     2) Sri. Devakumar.M.C.                  

                                                B.E., LLB., PGDCLP   - MEMBER

Sri H.M.SHIVAKUMARA SWAMY,

President

1.     This complaint is filed for a direction to the opposite parties to refund Rs.14,500/- with interest at 18% p.a. being the cost of the mobile and also direct the opposite party No.2 to take compensation for having delayed, the return of handset and for compensation and other reliefs.
2.     The brief facts alleged in the complaint are that the complainant has purchased a mobile phone from opposite party No.1 through finance at Home Credit India Ltd., on 01.11.2016 for Rs.14,500/-.  The complainant has paid EMI at the rate of Rs.1,195/- to Home Credit India Ltd.,  Around  4 months later, there is some problem with the handset, which was given to opposite party No.1 on 29.04.2017 which was not returned well in time.  Later, the complainant came to know that mobile was handed over to opposite party No.2, even opposite party No.2 has not returned the handset well intime.  Even now, the handset is with opposite parties only, it amounts to deficiency of service and accordingly, complainant sought for the reliefs.
3.     Both opposite parties served with notice, opposite party No.1 absent, placed exparte.  Opposite party No.2 appeared through the advocate and submitted the following version:- The complainant has not placed the real facts before this Forum and suppressed the truth.  The complaint is not maintainable for non-joinder of necessary parties i.e. manufacturer of mobile.  It is further stated that the handset of the complainant is ready and the same can be collected by him.  The handset is in proper working condition, the minor problems written by the complainant has been rectified by the manufacturer under warranty without any charge. 
4.    On 30.05.2017, opposite party No.2 has collected the phone and it was sent to company for repair.  If repair the handset was returned to opposite party No.2 on 24.10.2017.  Opposite party No.2 was unable to contact the complainant as his phone was switched off.  When later contacted the complainant informed the opposite party No.2 that he has filed complaint before Consumer Forum and he is not interested in collecting the handset.  Manufacturer cannot be held liable to refund the amount, if he is ready to remove the alleged defects.  Opposite party No.2 is only a service center preparing the mobile phone as per instructions of manufacturer.  Thereby, there is no deficiency of service.  As such, opposite party No.2 sought for dismissal of this complaint.
5.     On the above contention, this matter is set down for evidence.     During evidence, on behalf of complainant, his affidavit is filed.  Further evidence closed.  Opposite party No.2 has not filed any affidavit evidence.  On the other hand, written arguments of both parties filed and during pendency of the proceedings, opposite party No.2 has offered the mobile handset, complainant and advocate for complainant are not ready to receive mobile handset.  Thereafter hearing arguments, this matter is set down for orders.     
6.     The points arose for our consideration are:-

1. Whether the complainant establishes that there is deficiency of service on the part of opposite parties in not attending the repairs well within the time, thereby the complainant is entitled for the reliefs?
2.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

8.    Point No.1:- From the plain reading of complaint and affidavit filed by the complainant, it is clear that he has purchased handset from opposite party No.1, who is dealer and it is also admitted that opposite party No.2 is authorised service center.  Opposite parties not denied the transaction.  Opposite party No.2 has received the handset with complaint of repair of battery backup heating problem as per job sheet dated 30.05.2017.  So from this, it is clear that the complainant has handed over the mobile set to opposite party Nos.1 and 2 for repair.  Opposite party No.2 has alleged that he has sent the mobile handset to the manufacturer, the same was received recently and he has made all efforts to meet the complainant by phone for requesting him to take phone.  Atlast, the complainant did not receive the mobile handset stating that he has already filed the complaint.  Even before this Forum, opposite party No.2 has offered the mobile handset, which was refused by the complainant and advocate for complainant. 
9.    From this, Forum can easily ascertained that immediately on receipt of mobile phone for repair, it was not return to the complainant, but later an attempt was made by opposite party No.2 to return the mobile handset to the complainant, which the complainant did not receive, alleging that there is delay.  So there is some lapses or deficiency of service on the part of opposite parties in not immediately attending the repairs of the mobile and delay in returning the same to the complainant.
10. In the circumstances, the mobile handset was repaired, it was not received by the complainant alleging delay.  Thereby, this Forum finds that it is a fit case to direct the opposite parties to return the mobile handset within the stipulated time with compensation and litigation expenses.    Hence, point No.1 is answered partly in the affirmative.
11.   Point No.2:- In view of the findings recorded on point No.1, both opposite parties are jointly and severally liable to return the mobile to the complainant in working condition in 45 days.  Further, opposite parties are also liable to pay compensation of Rs.3,000/- and litigation expenses of Rs.2,000/- to the complainant. Hence, we pass the following order:-

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite parties are jointly and severally directed to return the mobile handset to the complainant in working condition within 45 days from the date of this order, failing which the opposite parties shall pay penalty of Rs.50/- per day to the complainant till compliance is made.   
3. The opposite parties are jointly and severally directed to pay compensation of Rs.3,000/- with litigation expenses of Rs.2,000/- to the complainant within 45 days from the date of this order.  Failing which, the sum of Rs.5,000/- shall carry interest at 12% p.a. from the date of this order till payment. 
4. In case of default to comply this order, the opposite parties to undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
5. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 4^th May 2018)