JUDGEMENT

          Complainant by filing this complaint has submitted that she purchased a mobile phone sometimes in the month of May-2013 from op no.3 having Model No. Nokia 820 Black (IMEI No. 3545890524064363) on 22.05.2013 at a consideration of Rs. 23,000/-.  After purchase in the month of January-2014 the mobile phone was found hanged and the battery was not charging and the matter was reported to the op no.3 who advised to go to op no.2.  Accordingly complainant went to the op no.2 for service and at that time the problem was solved.  But on the next day i.e. on 23.01.2014 again battery problem was found.  So, complainant went to op no.2 for servicing and repairing if any at that point of time op no.2 replaced the mother board and so IMEI number was changed from 3545890524064363 to 354589052233586.  But even after that change, touch screen was found not working and charging was not properly made and the problem was informed to op no.2 which was duly communicated and went to op no.1 also on 19.02.2014 and on 22.02.2014 op no.1 regretted for inconvenience.  Thereafter complainant received the handset Lumia 820 and it was a new one handset and gave replacement note and also found that exchange Unit Model Nokia Lumia 820 ESN/IMEI No. 354589050628621 but that handset also was not working.  In fact op no.2 handed over a defective handset to the complainant and practically for negligent and deficient manner of service of op no.1, complainant lost her energy and service hours and practically in all occasions she has been harassed by the op and in the above circumstances and also for adopting malpractices by the op since they did not properly render service in respect of the said set and for which complainant has suffered irreparable loss due to faulty handset and could not communicate properly with the desired persons in need and has been suffering from mental agony and for which the complaint is filed for redressal with a prayer for directing the op to replace the handset Nokia 820 Black or refund the consideration money of Rs. 23,600/- and compensation of Rs. 2,00,000/-.

          On the contrary op after appearing before this Forum in writing submitted on 22.04.2014 that they are willing to replace the handset with a fresh Box pack upgraded mobile to the complainant and that copy was received by Jhuma Begaum for Sharmila Nath, Advocate on 22.04.2014.  But thereafter the Ld. Lawyer for the complainant or the complainant did not receive the same.  Accordingly the case was heard and now we shall have to consider the present dispute in the light of the above complaint and the written prayer of the op.

                                                    Decision with reasons

          After hearing the Ld. Lawyer for the complainant and also the authorized agent of the op nos. 1 & 2 and also considering the prayer of the complainant, it is clear that complainant has prayed for replacement of the said mobile handset which was found not working.  But from the written prayer of the op dated 22.04.2014 it is found that Abhijit Chatterjee for Infotech Services in written prayer submitted that they are willing to replace her with a new fresh box pack upgraded mobile and truth is that op appeared along with new set before this Forum but complainant and their Ld. Lawyers were not willing to accept the same on 22.05.2014.  When complainant claimed Rs. 32,000/- in place of returning the back old one and that is also noted in the order dated 22.05.2014 and this Forum noted that fact and requested the op to pay the same.  But op in this regard submitted that the matter may be settled on receipt of Rs. 27,000/- and this Forum considered the fact and directed the op to handover a draft of Rs. 27,000/- and to that effect order dated 01.07.2014 was passed and subsequently on 10.07.2014 op appeared with draft of Rs. 27,000/-, but complainant was unwilling to receive.  So the settlement matter failed and accordingly we have come to this stage for decision.

          Considering the entire fact and circumstances and also the day to day performance of the op and their willingness to return a new set to the complainant and the negative attitude of the complainant to receive a new hand set as given by the op in this Forum we believe that the consumer behavior is not justified.  Truth is that in place of replacement, complainant prayed for the payment of Rs. 32,000/- by the op.  But op appeared along with a draft of Rs. 27,000/- on 10.07.2014 but complainant refused to accept it.  Considering that fact, it is clear that the present consumer behavior is not up to mark of a consumer like this complainant.

          Truth is that op offered a moderate handset valued at Rs. 27,000/- to Rs. 30,000/-, but complainant and her Ld. Lawyer refused to accept it on 22.05.2014 and when complainant refused to accept it, op ultimately agreed to pay Rs. 27,000/- because the value of mobile, complainant prayed for refund of Rs. 23,600/- and op agreed to pay Rs. 3,400/- as compensation and litigation cost.  So, op was ready to handover a draft of Rs. 27,000/- in favour of the complainant on 19.07.2014 but complainant refused to accept it and this is the conduct of the consumer (complainant).  In this regard after considering the entire situation and fact and circumstances that in fact op/Nokia Company and his service centre showed their good gesture from the very inception and on the very date on 22.05.2014 the matter can easily be finally settled if complainant would show her consumer behavior by accepting a new hand set in place of old one.  But we have failed to understand why complainant as consumer did not show her consumer behavior before this Forum.

          Anyhow complainant claimed Rs. 32,000/- after handing over the old set but op stated that the voucher receipt as submitted by the complainant is not authenticated in view of the fact the amount which was received by the op no.3 is not justified because the actual market price of the old set was Rs. 20,000/-.  But op no.3 the seller received Rs. 23,600/-.  But peculiarity is that no VAT deduction and other taxes are there and at the same time in total Rs. 23,600/- was received.  Even then op’s agent submitted that they are willing to refund Rs. 23,600/- the amount as paid as price amount of the Nokia set to the op no.3 and also Rs. 3,400/- as litigation cost and compensation because op’s agent submitted that they had their no intention to linger the matter.  So, on the very first date they prayed for disposing the case as op nos. 1 & 2’s agent appearing before this Forum on 22.05.2014 along with very more scientific new mobile for replacement.  Anyhow complainant did not show her consumer behavior.

          Specifically it is to be mentioned that op appeared to satisfy the complainant as per her prayer for replacement of a new set  and op agreed to pay Rs. 27,000/- but that was also refused by the complainant and considering the above conduct we are convinced to hold that we have failed to search out the negligence and deficiency on the part of the op.  But considering the entire materials on record also the fact and circumstances, we have gathered that as per consumer relation management theorization, it is the duty of the consumer to show their consumer behavior for getting relief and if it is found that the traders/sellers or manufacturers just on call from the Forum or the consumer agency appeared along with positive approach for satisfying the consumer in that case it is the bounden duty on the part of the consumer to dispose of the matter after taking a new item as per his/her choice.  But it is not expected that a consumer shall have to play before a Forum even when the op/manufacturer/seller or service provider is ready along with a new article for replacement or ready to pay the entire amount along with some compensation.

          But peculiar factor is that in this case complainant has not shown her consumer behavior and unfortunately she is not willing to take Rs. 27,000/- (Rs. 23,600/- purchased value of Mobile + Rs. 3,400/- as compensation and litigation cost) and in our view after studying the principles and theory of consumers relation management and also the consumer economy and social responsibility of the traders and including manufacturer, we have gathered that in the present case op nos. 1 & 2 the manufacturer and service provider of Nokia showed their responsibility to the consumer and showed their effective trade practice by handing over a new mobile phone for replacement but when complainant refused to accept it though ops appeared along a draft of Rs. 27,000/- issued in name of the complainant and that was also refused.  Then we find that the complainant has/had intention anyhow to collect more money but this Consumer Forum is not in a position to give any indulgence in this regard and when all sort of good gesture from the op has been shown from the very beginning and even after appearance before this Forum.   In the result we are disposing the matter with painful heart considering unmanner consumer behavior on the part of the complainant.

          Hence, it is

                                                            ORDERED

          That the complaint be and the same is disposed of when no deficiency and negligence on the part of the op is found.  But we are directing the op to handover a new mobile handset as per her choice what complainant wants in place of old one and in no case value of new handset shall be more than Rs. 27,000/- and if complainant is not willing to receive the same in that case op shall have to handover the demand draft of Rs. 27,000/- what op agrees to pay and same shall be handed over to the complainant at the point when complainant shall have to return back the old mobile set to op nos. 1 & 2 or his agent.

          But complainant is also directed to cooperate with the op nos. 1 & 2 and their agent to receive the cheque or the new one as per her choice after handing over the old mobile set to the op nos. 1 & 2 or his agent on proper receipt.

          Parties shall have to comply the order within one month and op nos. 1 & 2 in this regard are requested to report about compliance of the order after one month.  Thus this complaint is disposed of finally.