JAGANNATH BAG, MEMBER

          The present appeal is directed against the Order, dated 07.08.14 , passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in CC No. 119 of 2014 , whereby the complaint was disposed of with direction upon the OPs ( 1 & 2 )  to hand over a new Mobile handset as per the Complainant’s choice  in place of the old one,  value of which shall not exceed Rs. 27,000/- or to hand over a demand draft of Rs. 27,000/- to the Complainant, if she is not willing to receive the new hand set.

          The Complainant’s case, in brief, was as follows:

          The Complainant, sometime in May, 2013, purchased a mobile handset , Nokia 820 Black (IMEI NO. 354589052406463) at a consideration of Rs. 23,600/- from OP No. 3. In January, 2014 , the Mobile set was getting hanged  and the battery was not charging . OP No. 3 was contacted and their Manager advised the Complainant to meet OP No. 2, being the authorized service centre of OP No.1 . OP No. 2 took the phone and upgraded the software assuring that the same would be fine. The same problem occurred and on 22.01.2014 , the representative of OP No.2 checked the battery and the charger and stated that they have solved the problem. But the problem recurred . On 24.01.14 the Complainant handed over the Mobile phone to OP No. 2 expecting that the handset would be changed  as assured by the representative of OP No.2 . On 01.02.14 , the Complainant went to OP No. 2 when she was told that they have changed the mother board. But when the Complainant took the handset , she found that the touch screen was not working . The handset was again taken by the representative of OP No.2 and returned with the statement that the problem was solved . But  the problem of the Mobile handset did not end. OP No.1 was informed about the problem through mail . As per instruction of OP No.1 , the handset was deposited to OP  No. 2 on 19.02.2014 with intimation to OP No. 1 through mail. She was told that the handset would be repaired and then returned within 8-10 days. The Complainant received the handset Lumia 820 and the representative of OP No.2 told that it was a new handset . A replacement note was given . The said handset was also not working . It was realized by the Complainant that OP No. 2 handed over a defective handset . She was harassed over a long period for the malpractice of the O.Ps.  In the said circumstances, the Complainant approached the Ld. Forum below with prayer for direction upon the O.Ps. ‘to replace the defective handset  Nokia – Lumia 820 Black or refund of the consideration money of Rs. 23.600/-’  along with compensation of Rs. 2,00,000/- for harassment, mental pain and agony.

          The OP-2 appeared before the Ld. Forum and submitted in writing that they were ready to replace the handset with a fresh box pack upgraded model  to the Complainant and that copy was received by Jhuma  Begum  representing Ms. Sharmila  Nath , Advocate,  on 22.04.14 . Ld. Forum below observed that though the OP offered to replace the defective handset with a new fresh box pack upgraded mobile, the Complainant and their Ld. Lawyer were not willing to accept the same . She claimed Rs. 32,000/- in place of the old one. OP offered to settle at Rs. 27,000/- and accordingly, Ld. Forum  directed  OP -2  to handover a draft of Rs. 27,000/- and to that effect order dated 01.07.14 was passed. The Complainant refused to receive  the draft. Ld. Forum below remarked that the Complainant’s behavior  was not up to mark. Ld. Forum below also observed that the OPs showed their responsibility by offering a new mobile phone for replacement. There was no fault on the part of the OPs. The Complainant was rather interested in collecting more money from the OPs. In the said circumstances no deficiency or negligence on the part of the OP was found. But OPs were directed to handover a new mobile handset as per choice of the Complainant worth Rs. 27,000/- on return of the old handset or to hand over the demand draft of Rs. 27,000/-  to the Complainant on return of the old mobile set to OPs.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Complainant - turned - Appellant has come up before this Commission asserting that the Ld. Forum below failed to appreciate that the OPs did not fulfill their duty / obligations towards the Appellant / Complainant who suffered mental agony and financial loss .

           Ld. Advocate appearing for the Appellant submitted that there was continuous harassment by the OPs who repeatedly assured the Complainant that the Mobile set was repaired and put into order but actually the handset was not properly repaired , as a result of which,  fault free service was not availed by the Appellant/Complainant. She did not get her money’s worth in the matter of service of the Mobile phone. Time and again she was given false assurance causing mental agony and harassment . Even change of handset was no relief for the Complainant as she experienced lack of service  and wastage of time and energy in visiting the OPs, particularly OP No.2 which the Ld. Forum below did not consider. It was also submitted by the Ld. Advocate that though the Ld. Forum below passed an order on 22.05.2014 directing the OP No.2 to pay total sum of Rs. 32,000/- as cost of mobile and compensation , such order was not carried out by the OP . Ld. Forum below again in revision of its own order dated 22.05.14 directed the OP to file evidence in chief . After hearing of both parties, Ld. Forum below,  by its final order , dated 07.08.2014 directed the OP to hand over a mobile set, price of which shall not exceed Rs.27,000/- . The entire adjudication process was arbitrary in nature . Ld. Forum below gave contradictory directions ignoring the fact that the Appellant/ Complainant was harassed by the OPs , particularly OP No. 2 for which a reasonable compensation should have been considered  . As such, the impugned order should be modified with appropriate enhancement of the compensation amount.  

          Ld. Advocate appearing for the Respondent  No.1  submitted that there was no willful negligence or deficiency in service on their part. The Appellant/Complainant was attended with due care as and when she visited the OP No. 2 for fixing of the problems faced by her. New telephone was offered at the direction of the Ld. Forum below but she refused to accept the same. Even the Ld. Forum below instructed the OP to hand over a draft of Rs. 27,000/- to the Complainant which again was refused. This was because of an ulterior motive of the Appellant /Complainant who wanted to gain by disobeying the instructions of the Ld. Forum below. The good gesture shown by the OP has been appreciated by the Ld. Forum below but the Appellant/Complainant was very much reluctant to accept the offer which was made by the OP and endorsed by the Ld. Forum below. The Complainant has no ground of asking for more money towards compensation or costs. The impugned order deserves to be upheld.

                                                   Decision with Reasons :

          We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint and other documents including the receipt for purchase of the NOKIA 820 BLACK Mobile set for a sum of Rs. 23,600/- .  The written offers dated 22.04.14 and 07.05.14 of OP No.2 and also the copy of order of the Ld. Forum below dated 22.05.14 among other documents have been perused.

          The point for consideration is whether the impugned order suffers from any material irregularity or legal infirmity.

          The fact goes that the Appellant/ Complainant faced problems in regard to the use of the handset particularly from January 2014, i.e, after about 7/8 months of purchase which was very much within the warranty period.  On several occasions she had to visit the office of the OP No.2 and had to write  to OP No.1 for redressal of her grievance.      

          There is no denial that the handset sold by the OP No.3 was defective  as a result of which she had to lodge complaint to the OPs and had to suffer mental agony endlessly. Even after replacement of the first handset by a new one, her suffering did not end. It is evident that the handset supplied by the OP was defective in nature and the compensation claimed by the Appellant/Complainant was not without cause.

          Ld. Forum below appears to have ordered on 22.05.14 that OP  No.2 should pay Rs. 32,000/- to the Complainant and receive back the old hand set.  After passing of such order , OP No.2 appeared on 01.07. l4 with an offer of Rs. 27,000/- which the Complainant declined to receive . Then the matter was proceeded with and in their final order , Ld. Forum below directed the OP -2 to handover a new mobile set worth Rs. 27,000/- or to handover a demand draft of Rs. 27,000/- which included the cost of the original mobile set amounting to Rs. 23,600/- and Rs. 3,400/- as compensation and litigation cost respectively.  

          It is , however, striking to note that inspite of admitted sale of a defective product by the OP , the Ld. Forum below did not appreciate the fact and observed that there was no deficiency or negligence on the part of the OP. It is again important to note that the Appellant/Complainant in her petition of complaint prayed for direction upon ‘the OPs to replace the defective handset Nokia –Lumia 820- Black or refund the consideration money of Rs. 23,600/-’ along with payment of compensation of Rs. 2,00,000/- for mental pain and agony and harassment.

          It is true that the Appellant / Complainant suffered mental agony and harassment in the hands of the OPs who time and again assured that the mobile hand set was properly repaired but in reality the Appellant / Complainant did not get fault free service. Even after replacement of the first hand set , the Complainant / Appellant was not relieved of her problems with the mobile set. Repeated failure on the part of the OP/ Respondent prompted the Complainant/Appellant to file the complaint case and the Ld. Forum below in an attempt to settle the dispute at the very beginning directed the OP to pay Rs. 32,000/- which was not complied with by the OP No.2.

        Going by the materials on record and also the submissions made by the Ld. Advocates appearing for both the Appellant and the Respondent No.1 , while other Respondents remained absent during hearing , we are of the considered view that the Appellant should get refund of the cost of the purchase value of the handset i,e., Rs. 23,600/- and also a reasonable compensation for her harassment and mental agony. In that view of the matter , the impugned order may be modified . Hence,

                                                Ordered

That the appeal be and the same is allowed in part.  The  Respondent No.2 / OP No.2  is directed to refund Rs. 23,600/- being the purchase value of the mobile set together with Rs. 20,000/- as compensation within a period of 40 days from the date of this order, failing which  interest @ 9% p.a shall accrue on the entire amount of Rs. 43,600/- till full realization. There shall be no order as to cost.    The impugned order stands modified.