PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party No.1 to 3 are engaged in the business of manufacturing and selling of Mobile Handset under the name and brand ‘Nokia’. Opposite Party No.4 is authorized Service/Care Centre of the Opposite Party No.1 to 3. Opposite Party No.5 is authorized retailer of Opposite Party No.1 to 3. Opposite Party No.1 to 3 gave an attractive advertisement of their newly launched Nokia Model E-71 and represented to the public that their aforesaid handset is very useful as a Business Phone, wherein one can browse internet, access e-mails and such other features. Relying upon the representation made by the Opposite Party No.1-3, on 05/02/09 the Complainant purchased Nokia Model E-71 handset from Opposite Party No.5 for Rs.19,500/- bearing EMI No.351940030221552.
2) It is alleged by the Complainant within few days of purchase technical snag developed in the said handset. The handset use to get hang/un-operational and the keys would not respond/function. Moreover, the handset on its own switches off and by itself get re-start/reboot again. According to the Complainant due to the manufacturing defect in the said handset, the Complainant was not able to access to internet or access e-mails which were prominent features of the said handset. The Complainant was also not able to use basic function of the phone i.e. to make or receive calls. Due to the manufacturing defect of the mobile handset the Complainant lost his important contact numbers and data and he could not answer number of calls as his handset would get hang up. Therefore, the Complainant approached Opposite Party No.4 – Authorized Service Centre of Opposite Party No.1 to 3 to get the defect repair and submitted handset to Opposite Party No.4. Opposite Party No.4 took the said handset for repairs and informed the Complainant that said handset would be sent to Delhi for repairs and will take at least two weeks time. The Complainant has produced service job sheet dtd.22/06/09 issued by Opposite Party No.4 alongwith complaint at Exh.‘C-1’.
3) It is submitted that even after alleged repair carried out by Opposite Party No.4 for about 2 weeks defects in the handset not only persisted but went on to become more headache to the Complainant, as the fault of handset being switching off on its own was aggravated. Therefore, the Complainant once again approached Opposite Party No.4 and told his grievance. The Complainant has requested Opposite Party No.4 for replacement of the handset. The Opposite Party No.4 took Complainant’s mobile handset for repair and issued job sheet dtd.20/07/09.
4) On 05/08/09, the said handset returned to the Complainant, however, when the Complainant checked the said handset, problems in the handset were remained unsolved, the Complainant put endorsement to that effect on the job sheet and demanded replacement of handset. The Complainant has produced copy of the job sheet dtd.20/07/09 alongwith complaint at Exh. ‘C-2’.
5) In the meantime, the Complainant reported the matter of his faulty handset to Opposite Party No.1 to 3 on the e-mail addressed displayed by the Opposite Party No.1 to 3, but stereotype reply and false assurances were given to the Complainant. Opposite Party No.1 to 3 did not make any effort to resolve grievances of the Complainant.
6) According to the Complainant, he had purchased said handset by paying amount of Rs.19,500/- with the intention to excess internet and other facilities but due to the manufacturing defect in the handset, he could not use the said handset. On 11/09/09, the Complainant sent legal notice to the Opposite Party No.1 to 4 and thereby called upon Opposite Parties to replace his faulty mobile handset within 7 working days and also pay to the Complainant a compensation of Rs.5 Lacs for mental agony and harassment. The said notice was duly served upon the Opposite Party No.1 to 4 but Opposite Party No.1 to 4 did not comply with the said notice. On 11/09/09, some officials from Opposite Party No.1 to 4 contacted the Complainant and demanded his handset for repairs but Complainant refused and demanded that he be given replacement of handset and adequate compensation. Mr. Amit, Manager of Opposite Party No.4, Mr. Bhavesh, Head of Opposite Party No.4, Mr. Mithun Chauan, from Opposite Party No.3 and Mr. Himanshu from Delhi office of Opposite Party had contacted the Complainant and promised to get the compensation but thereafter never bothered to contact the Complainant. As such, Complainant once again issued aforesaid reminder notice dtd.14/10/2009 to Opposite Party No.1 to 4, but Opposite Party No.1 to 4 have not replied to the said notice.
7) Opposite Party No.4 vide his letter dtd.27/10/09 called upon the Complainant to submit his handset at the centre of Opposite Party No.4 for further process. As per the Complainant, he did not understand the terminology of Opposite Party No.4’s aforesaid letter and he called Opposite Party No.4 to explain the same. Opposite Party No.4 vide their letter dtd.02/11/09 informed the Complainant very casually that Opposite Party No.4 have arranged for replacement of Nokia E-71 make and asked the Complainant to submit his existing handset and take new. According to the Complainant, the aforesaid letter clearly established that Opposite Party No.1 to 4 were aware about defects in the handset. But inspite of Complainant’s demand they refused to replace the handset. The Complainant called upon Opposite Party to compensate adequately but there was no response from the Opposite Parties. It is alleged by the Complainant that the Opposite Parties deliberately did not give replacement of the handset to the Complainant and it amounts to deficiency in service on the part of Opposite Parties and also it amounts to unfair trade practice. Therefore, the Complainant has filed this complaint. The Complainant has requested to declare that Opposite Parties No.1 to 5 deficient in service and adopted unfair trade practice. The Complainant has requested to direct Opposite Parties to pay jointly and or severally to the Complainant an amount of Rs.19,500/- being price of the handset alongwith interest @ 18 % p.a. from the date of purchase till actual payment of the amount. The Complainant has requested to direct Opposite Parties to pay to the Complainant R.5 Lacs as compensation for harassment and mental agony suffered by the Complainant. The Complainant has demanded Rs.10,500/- towards legal expenses and cost of this proceeding. Alongwith complaint the Complainant has produced documents as per list of document and affidavit in support of complaint.
8) Opposite Party No.1 filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is not maintenable and deserves to be dismissed with cost. As per Opposite Party No.1, limited warranty is given to the purchaser of mobile handset of Nokia. In the event of defect in the handset, the handset will be repaired free of charge by the authorized service centre of Nokia. In the event, if defect is beyond repair then defective part is replaced and/or handset is replaced by another handset of same model to avoid inconvenience to the customer. Replacement is allowed only in cases of repair of the handset is not possible and or where there is a genuine problem of repeated repairs of the same problem. Opposite Party No.1 is importer of handset. However, the Opposite Party No.1 has admitted averment in the complaint para no.2 that Opposite Party No.1 to 3 are engaged in the business of manufacturing and selling of mobile handset under the name and brand name ‘Nokia’.
9) Opposite Party No.1 has denied Complainant’s allegations that there is manufacturing defects in the handset purchased by the Complainant. It is submitted that five months after purchase of said handset the Complainant pointed out problems developed in his handset. Whenever the Complainant submitted his handset for repair to the authorized service centre it was repaired to the satisfaction of the Complainant and so the Complainant has singed job sheet. Replacement of the handset is governed by the terms and conditions of the warranty. It was limited warranty. By notice dtd.11/09/09, the Complainant was requested to submit handset for repair, but the Complainant refused. Opposite Party wanted to examine in detail aforesaid handset. Complainant was demanding Rs.5 Lacs as compensation. The Complainant’s demand was beyond scope of settlement. According to the Opposite Party No.1, they are not liable to pay any compensation or cost of proceeding to the Complainant and complaint deserves to be dismissed with cost.
10) Opposite Party No.1 to 5 were duly served with the notice of the Complainant but they Opposite Party No.2 to 5 remained absent therefore, on 18/01/2010 ex-parte order was passed against Opposite Party No.2 to 5.
11) Opposite Party No.1 has filed affidavit of evidence. The Complainant has also filed affidavit of evidence. The Complainant has produced number of documents alongwith list of documents. The Complainant has filed written argument on 08/04/2011. Ld.Advocate Smt. Nisha Dubey for Opposite Party No.1 had sought adjournment for oral argument. Opposite Party No.1 has not filed written argument. Form 08/04/2011, Opposite Party No.1 has not appeared before this Forum so on 18/07/2011, we heard oral submission of Ld.Advocate Mr.Raul Karnik for the Complainant and complaint was closed for final order.
12) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party No.1 to 5 ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled to recover amount of Rs.19,500/- as price of handset with interest,
compensation and cost of this proceeding as prayed in the complaint from the Opposite Party ?
Findings : As per final order.
Reasons :-
Point No.1 :- Opposite Party No.1 to 3 are dealing in business of manufacturing and selling of Nokia Mobile Handset. Opposite Party No.4 is a authorized Service Centre of Opposite Party No.1 to 3 and Opposite Party No.5 is a authorized retailer of Opposite Party No.1 to 3. According to the Complainant, by relying upon the representation made by the Opposite Party No.3 regarding their newly launched Nokia Model E-71, on 05/02/09 he purchased it for Rs.19,500/-. The Complainant has produced copy of bill of purchase of Nokia Handset from Opposite Party No.5 on 05/02/09. It appears from the copy of the bill/tax invoice issued by Opposite Party No.5 that Complainant purchased Nokia Mobile phone Model E-71, EMI 1351940030221552 for Rs.19,000/- and not for Rs.19,500/- as claimed by the Complainant. According to the Opposite Party No.1 to 3 limited warranties was given to the said handset. The Complainant has produced copy of extended warranty check given by the Nokia.
According to the Complainant within few day of purchase of said handset the said handset developed a technical snag wherein the said handset used get hang/un-operational and keys would not respond/function, moreover the handset on its own switches off by itself, get re-start/reboot. It is the case of the Complainant that due to the aforesaid manufacturing defects the Complainant was not able to access internet or access e-mails and he was also not able to use basic functions of mobile phone i.e. to make or receive calls. Therefore, he approached Opposite Party No.4 and handed over his mobile handset for repairs to Opposite Party No.4. Opposite Party No.4 told that the handset would be sent to Delhi for repairs and will take at least 2 weeks time for repair. The Complainant has produced service job sheet dtd.22/06/09 issued by Opposite Party No.4 at Exh. ‘C-1’ annexed to the complaint. It appears from the service job sheet dtd.22/06/09 that faults reported by the customer were Power : restarts/reboots, the phone hangs at the time of receiving the calls and then it switched off. The same problem is for 3rd time and the customer is very unhappy. It appears that after purchase of mobile handset within 5 months period the Complainants was compelled to submit his mobile set for repairs due to the aforesaid problems to the Opposite Party No.4.
According to the Complainant, after 2 weeks his handset was returned to Opposite Party No.4 and at that time he noticed that defects in the handset not only persisted but went on to become headache to the Complainant as fault of the handset being switched off on its own was aggravated so he again handed over the handset for repair to Opposite Party No.4 on 05/08/09. The Complainant has produced copy of service job sheet issued dtd.20/07/09. The Complainant’s advocate has pointed out that as Complainant was not satisfied with the repairs of the handset, the Complainant put endorsement on the service job sheet as “not satisfied”. Copy of the service job sheet dtd.20/07/09 bear endorsement of the Complainant “not satisfied”. It is submitted on behalf of Complainant that there were manufacturing defects in the handset and so Opposite Party No.1 to 3’s authorized service centre could not repair the handset twice, even though the handset were retained for repairs for considerable period of two weeks on each occasion.
It is submitted that Complainant then approached Opposite Party No.1 to 3 on the e-mail but only false assurance was given. But the mobile handset due to defect was not working and the Complainant could not use it for receiving and making calls also. Thereafter the Complainant sent legal notice to the Opposite Party. Opposite Party did not comply with the notice. Ld.Advocate for the Complainant has referred several correspondences took place between the parties and submitted that the Opposite Parties have sold mobile handset to the Complainant which was having manufacturing defects. Inspite of repairs on two occasions, authorized service centre of Nokia could not repair the handset. Therefore, the Complainant has called upon the Opposite Party to pay price of the mobile phone alongwith interest and compensation of Rs.5 Lacs.
It appears form the evidence on record that the Complainant had purchased costly Nokia mobile handset E-71 on 05/02/09 with intention to use it for browsing internet, excess e-mail, etc. but due to the manufacturing defects, the Complainant could not use the said costly mobile handset and it caused mental agony to the Complainant. The Complainant’s request for replacement of the mobile handset was not initially considered by the Opposite Party. Opposite Party No.5 has sold aforesaid defective mobile handset to the Complainant. Considering the evidence on record we hold that the Complainant has proved deficiency in service on the part of Opposite Party No.1 to 5. Hence, we answer point no.1 in the affirmative.
Point No.2 :- The Complainant has prayed for recovery of Rs.19,500/- being the price of the aforesaid mobile handset from the Opposite Parties alongwith 18 % interest form the date of purchase of mobile handset. In the complaint the Complainant has claimed the he has purchased aforesaid mobile handset of Rs.19,500/-. However, bill of purchase of mobile handset produced by the Complainant disclose that the Complainant has purchased the said mobile handset Nokia E-71 for Rs.19,000/-. It appears that said mobile handset is having manufacturing defect so we think it just to direct Opposite Party No.1 to 5 to pay jointly and/or severally an amount of Rs.19,000/- as price of the mobile handset to the Complainant.
The Complainant has claimed interest on the price of mobile handset @ 18 % p.a. form the date of purchase i.e. 05/02/2009. It appears that due to th manufacturing defect, the Complainant could not use said mobile handset properly from the date of purchase. However, rate of interest claimed by the Complainant is rather excessive. We think it just to direct Opposite Party No.1 to 5 to pay to the Complainant interest @ 9 % p.a. on Rs.19,000/- from 05/02/2009 till realization of entire amount to the Complainant.
The Complainant has claimed Rs.5,00,000/- as compensation for mental agony and harassment from the Opposite Parties. The amount of compensation claimed by the Complainant is exorbitant. The Complainant has not adduced any evidence to justify such huge amount of compensation. Considering the facts and circumstances of the case, we think it just to direct Opposite Parties to pay to the Complainant an amount of Rs.5,000/- as compensation for mental agony.
The Complainant has claimed Rs.10,500/- towards legal expenses and cost of this proceeding from the Opposite Parties. Considering nature of this proceeding we think it just to direct the Opposite Party No.1 to 5 to pay to an amount of Rs.2,000/- towards legal expenses and cost of this proceeding to the Complainant . Hence, we answer point no.2 accordingly.
For the reasons discussed above, we pass following order –
O R D E R
i.Complaint No.310/2009 is partly allowed.
ii.Opposite Party No.1 to 5 shall pay jointly and/or severally an amount of Rs.19,000/- (Rs. Nineteen
Thousand Only) as price of mobile handset to the Complainant with interest @ 9 % p.a. on aforesaid
amount from 05/02//2009 till realization of entire amount to the Complainant.
iii.Opposite Party No.1 to 5 shall pay jointly and/or severally an amount of Rs.5,000/-(Rs. Five Thousand
Only) as compensation for mental agony and Rs.2,000/- (Rs. Two Thousand Only) as cost of this
proceeding to the Complainant.
iv.Opposite Party No.1 to 5 shall comply with the aforesaid order within period of one month from the date
of receipt of this order.
v.Certified copies of this order be furnished to the parties.
