DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 237 of 16.8.2007<br /> Decided on : 20.12.2007<br /> <br /> Jagjit Singh S/o Gurnam Singh, R/o House No. 20971, Gali No. 2, Power House Road, Bathinda. <br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. Nokia Digital Control, 31, Video Market, Ghumar Market, Ludhiana through its Office Incharge/Manager<br /> 2. Neuron Technologies, Hanuman Chowk, Bathinda through its Office Incharge/Manager.<br /> 3. Nokia Care, HCL Infonet Ltd., SCO No. 2453-54, Sector 22C, Ground Floor, Chandigarh-160022 through its Office Incharge/Manager.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Amrit Pal Singh, Advocate<br /> For the opposite parties : Sh. G.S Bhasin, counsel for opposite party No.2. Opposite parties No. 1 & 3 exparte<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT:-<br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay him Rs. 11,400/- (Price of the mobile handset) alongwith interest @ 18% P.A from the date of purchase till realization; Rs. 80,000/- on account of mental and physical sufferings and Rs. 5,500/- as litigation expenses. <br /> 2. Version of the complainant may be stated as under :-<br /> He had purchased one mobile handset make Nokia 6131 bearing IMEI No. 359374000095642 from opposite party No. 1 for a consideration of Rs. 11,400/- vide bill No. 398 dated 30.9.2006. Opposite party No. 2 is the authorised service centre of Nokia mobile handsets and representative of opposite party No. 3. At the time of sale, opposite party No. 1 had made tall claims about its functioning and quality. Warranty of one year was given on it assuring that in case any defect takes place within the warranty period, the same would be rectified or handset would be replaced with a new one. In January, 2007 defects had cropped in it as it was not getting switched on. Functioning had stopped. Opposite party No. 1 was approached. On its suggestion, he paid visit to opposite party No. 2 on 30.1.2007. After inspection, opposite party No. 2 informed him that handset was required to be sent to opposite party No. 3 and that he should collect after one week. Accordingly, he paid visit to opposite party no. 2 after one week. He was told to come after another week as no communication was received by it from opposite party No. 3 regarding the set. When he went again to opposite party No. 2 after a week, he was informed that the defect in the handset is irrepairable and that it would be replaced by opposite party No. 3 and that new mobile handset would be given as and when it is received from opposite party No.3. Thereafter, opposite party No. 2 was approached by him 2/3 times for getting new handset. It gave no satisfactory reply and ultimately, refused to deliver new mobile handset in place of the defective one. He was told that second hand mobile handset would be given in place of the defective handset which was with it (opposite party No. 2). He refused to receive second hand handset and insisted to get a new one. Thereafter, legal notice was served by him upon the opposite parties, but to no effect. Consumer Complaint was instituted by him against the opposite parties before this Forum on 20.4.2007 in which they were summoned. On 31.5.2007, counsel for opposite party No. 2 had suffered statement which reads as under :-<br /> “Opposite party No. 2 offers mobile handset model Nokia 6131 with IMEI No. 359374000031936 with twelve months warranty commencing from today onwards to the complainant”<br /> He (complainant) also suffered statement accepting the mobile handset and sought the complaint to be dismissed as withdrawn. Accordingly, it was dismissed by this Forum in the Lok Adalat. Thereafter, he was using this mobile handset. He found that its Camera was not functioning. Matter was reported to opposite party No. 2 on 11.6.2007. Set was retained by it vide Service Job Sheet No. 068343506/70611/39 dated 11.6.2007 for repair telling him to collect the same on 12.6.2007 on which date he had gone for its collection. Set was returned to him telling that it cannot be repaired and is required to be sent to Chandigarh for repairs. He was asked to come with the set after two weeks. On 25.6.2007, he again paid visit to opposite party No. 2 which retained the set vide Job Sheet No. 06834356/070625/72 dated 25.6.2007 for sending it to opposite party No.3. He was told to collect it on 26.6.2007 on which day he was informed that company has stopped manufacturing the mobile set of this model and its spare parts are not available in the market and as such, it cannot be repaired. Second hand repaired mobile set was offered. He refused to receive it. It is alleged that opposite party No. 2 had willfully given defective mobile handset to him on 31.5.2007 on the basis of which previous complaint was got dismissed by him as withdrawn. Opposite parties have indulged in unfair trade practice and there is deficiency in service on their part.<br /> 3. Registered A.D post notices of the complaint were issued to opposite parties No. 1 & 3 on 24.8.2007. Neither registered covers nor A.D.s were received till 27.9.2007. Accordingly, they were deemed to have been duly served and have been proceeded against exparte.<br /> 4. Opposite party No.2 filed reply of the complaint taking legal objections that complaint is not maintainable and this Forum has got no jurisdiction to entertain and try it. On merits, it admits that it is the authorised service centre of the manufacturing company. Handset with IMEI No. 359374000095642 was received by it for the first time on 30.1.2007 with reported fault of power does not switch on. Set was sent to opposite party No.3 which has swapped it. Complaint was filed by the complainant on 20.4.2007. Its counsel had made statement on 31.5.2007 before this Forum offering mobile handset Nokia, model 6131 with IMEI No. 359374000031936 with 12 months warranty commencing from that day onwards. On its basis, complaint was got dismissed by the complainant as withdrawn after receiving handset and parties were left to bear their own costs. Mobile handset with IMEI No. 359374000031936 was brought by the complainant to it on 11.6.2007. It was retained vide Job Sheet dated 11.6.2007 for repairs and complainant was asked to collect the same on 12.6.2007. Its plea is that handset was rectified free of cost and was handed over to the complainant. It denies that it was returned on 12.6.2007 by saying that the same could not be repaired and was required to be sent to Chandigarh for repairs. Handset was again received by it on 25.6.2007 with reported fault of Camera not working and it was sent to level three service centre of the company. It further avers that manufacturing company has stopped the manufacturing of mobile handset model 6131. Swapped handset with 12 months warranty was offered which complainant refused to receive.<br /> 5. In support of his allegations and averments in the complaint, Jagjit Singh complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of order dated 31.5.2007 (Ex.C.2), photocopy of legal notice dated 5.3.2007 (Ex.C.3), photocopies of postal receipts (Ex.C.4 to Ex.C.6), photocopies of Acknowledgments (Ex.C.7 to Ex.C.9), photocopy of bill dated 30.9.2007 (Ex.C.10), photocopies of Service Job Sheets (Ex.C.11 to Ex.C.13) and photocopy of delivery challan (Ex.C.14).<br /> 6. On behalf of opposite party No.2, reliance has been placed on affidavit (Ex.R.1) of Sh. Swadesh Goyal its Proprietor.<br /> 7. We have heard the learned counsel for the complainant and opposite party No. 2. Apart from this, we have perused the record.<br /> 8. Some facts do not remain in dispute. They are that complainant had purchased mobile handset make Nokia model 6131bearing IMEI No. 359374000095642 for a consideration of Rs. 11,400/-. Copy of the bill dated 30.9.2006 is Ex.C.10. It had gone out of order. It was brought to opposite party No. 2 for repairs as it was not switching on. Mobile handset was received by opposite party No. 2 vide Job Sheet dated 30.1.2007, copy of which is Ex.C.13. It was not repaired nor new one in its place was given. Legal notice, copy of which is Ex.C.3, was served by the complainant. Ultimately, he had to file complaint on 20.4.2007. Mobile handset make Nokia model 6131 with IMEI No. 359374000031936 with 12 months warranty was given by opposite party No. 2 which was accepted by the complainant. Complaint was got dismissed by the complainant as withdrawn. Copy of the order is Ex.C.2. Handset delivered on 31.5.2007 had gone out of order and it was brought by the complainant to opposite party No. 2 which had retained it vide Job Service Sheet, copy of which is Ex.C.11. Camera was not functioning. Handset was returned to the complainant. It was again brought by him to opposite party No. 2 on 25.6.2007 and was retained by it vide Job Service Sheet, copy of which is Ex.C.12, for sending the same to opposite party No.3. Thereafter, it has not been returned after repairs. Opposite party No. 2 is asserting that manufacturing of such like mobile handsets has been stopped by the manufacturing company. <br /> 9. Arguments pressed into service by the learned counsel for the complainant are that mobile handset purchased on 30.9.2006 remained with the opposite parties from 30.1.2007 onwards till 31.5.2007 when another mobile handset was given in its place. Handset given on 31.5.2007 is out of order. It has not been repaired by the opposite parties. Rather, opposite party No.2 has taken the plea that manufacturing company has stopped manufacturing of such like handsets and as such, deficiency in service on the part of the opposite parties is proved.<br /> 10. Mr. Bhasin, learned counsel for opposite party No. 2 argued that opposite party No. 2 had offered swapped handset to the complainant and he has refused to receive it. Hence, there is no deficiency in service on the part of the opposite parties.<br /> 11. We have given our thoughtful consideration to the rival arguments. Objection of opposite party No. 2 about the territorial jurisdiction of this Forum to entertain and try this complaint is not tenable in view of the fact that opposite party No. 2 had handed over the mobile handset to the complainant on 31.5.2007 at Bathinda. Warranty was also given by it through its counsel on that day at Bathinda. Set was given for repairs to it on 11.6.2007 and 25.6.2007 at Bathinda. Moreover, it is the authorised service centre i.e. limb of the company at Bathinda.<br /> 12. There is no quarrel about the fact that mobile handset given to the complainant by opposite party No. 2 on 31.5.2007 is not repairable. Even level three service centre of the manufacturing company could not send it back after repairs. Even if it is taken that opposite party No. 2 had offered swapped set which has not been received by the complainant, complainant cannot be said to be at fault. New mobile handset model 6131 make Nokia could be given to the complainant in lieu of the mobile handset which was given to him on 31.5.2007. It has not been done. Plea of opposite party No. 2 is that manufacturing company has stopped the manufacturing of Nokia mobile handset model 6131. When it is so, the question of replacing mobile handset model 6131 make Nokia which was given to the complainant on 31.5.2007, does not arise. Manufacturing company has stopped the manufacturing of Nokia mobile handset model 6131 and as such, mobile handset which was given to the complainant on 31.5.2007 cannot be replaced by opposite party No. 2 which had given it on 31.5.2007. Price of the Handset has not been returned by opposite party No. 2. In these circumstances, deficiency in service on the part of opposite party No. 2 alone is established. So far as opposite parties No. 1 & 3 are concerned, this complaint against them is not maintainable as previous complaint against them was withdrawn by the complainant without reserving his right to proceed against them in future about the mobile handset in question.<br /> 13. Now question arises as to which relief should be accorded to the complainant. Price of the mobile handset purchased by the complainant was Rs. 11,400/-. When mobile handset has not been replaced nor can it be replaced in view of the plea taken by opposite party No.2, direction deserves to be given to opposite party No. 2 to pay Rs. 11,400/- to the complainant as set was given by it to the complainant on 31.5.2007. Complainant is craving for compensation of Rs. 80,000/-. In our view, there is no case to allow it. No-doubt, complainant has been deprived of the use of mobile handset from 11.6.2007 onwards, yet one thing is clear that he used the handset from 30.9.2006 to January, 2007 and second mobile handset from 31.5.2007 till 10.6.2007. Moreover, we are allowing full price of the mobile handset.<br /> 14. In the result, complaint is allowed against opposite party No. 2 with costs of Rs. 1,000/-. It stands dismissed qua opposite parties No. 1 and 3. Opposite party No. 2 is directed to do as under :-<br /> ( i ) Pay Rs. 11,400/- to the complainant i.e. the price of the mobile handset<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order, failing which it (opposite party No. 2) would pay interest on this amount @ 9% P.A till the date of payment.<br /> 15. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 20.12.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br />