DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Puneet (complainant) s/o Late Sh.Mahant Tripathi, # 49, Sector 23-A, Chandigarh.

…..Complainant

                                      V E R S U S

1.       Nokia Mobile Company (Nokia Care Centre SCO No.2433-34, Sector 22, Chandigarh).

2.       Anmol Watches, SCO No.1043, Sector 22, Chandigarh.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Complainant in person.

                     Sh.Gaurav Bhardwaj, Counsel for OP No.1.

                     OP No.2 exparte.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Puneet, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Nokia Mobile Company (Nokia Care Centre) & Anr. (hereinafter called the OPs), alleging that he purchased one Nokia Asha 311 (touch screen) mobile phone for a sum of Rs.6500/- from Anmol Watches, Sector 22, Chandigarh - OP No.2 on 4.10.2012, which was gifted to his wife. However, the phone started hanging or its touch screen got jammed. He went to OP No.2 within two days of purchasing the mobile set for resolving the problem. The person (Nokia Care representative) at the Anmol Watches rebooted the mobile set and said that the phone was OK. However, the wife of the complainant used the Nokia mobile set at home and she complained many times to the complainant that the touch screen of the mobile set got jammed again and again. The complainant again went to Anmol Watches, Sector 22, Chandigarh - OP No.2 with the same problem and the salesman working at the Anmol Watches directed him to take his mobile set to Nokia Care Centre, OP No.1. The complainant went to Nokia Care Centre on 16^th or 17^th October and reported the problem to it. Nokia Care Centre updated the software and rebooted his phone and without giving any reference number or complaint number they said that his phone was alright. However, when the complainant reached home and handed over the Nokia mobile set to his wife, she faced the same problem again. The complainant went to Nokia Care Centre, where his phone was checked for half an hour and he was assured that his phone was alright. The complainant visited Nokia Care Centre many times between 16^th to 20^th October but the officials failed to resolve his problem. At last the Nokia Care Centre (officials) told him that their service centre did not have the laser technology to deal with his defective set and they would send his mobile set to their head office to solve the problem. They asked the complainant to deposit his mobile set in their service centre. The complainant lodged a complaint on phone No. 01130303838 on 20^th October and his case id is                    1-13398401342.  The complainant requested the Nokia representative that the mobile set sold to him was defective and he needed his money back but they asked him to deposit his set at Nokia Care Centre, Sector 22. The complainant deposited the mobile set in Nokia Care Centre, Sector 22 on 20.10.2012 and the job card was given to him by Nokia Care, Chandigarh on 23.10.2012.  Thereafter, the complainant called Nokia Care Centre and Nokia Head office Delhi many times and requested them for refund of money but he was given false assurance every time that the higher authorities were looking into the matter. The complainant purchased a good phone of another brand to gift his wife during festive season. The complainant has further alleged that Nokia Company accepted that his phone had a problem, which could not be solved and they were ready to swap his phone with same model (opened box) Asha 311.  The complainant has alleged that he and his wife are not interested to take the swap set, which is not even in a sealed box. The OPs are harassing the complainant mentally and they are continuously pressurizing him to take the swap set. The complainant has contended that he has no faith in the said model and due to sale of defective piece of set to him, he and his wife have undergone mental harassment and economic loss of Rs.6500/-. The complainant has made a prayer for a direction to the OPs to refund the amount of Rs.6500/-, apart from compensation of Rs.20,000/- and Rs.5000/- towards all the expenses for the court case.

2.                Notice of the complaint was given to the OPs. OP No.2 did not appear despite service on 8.1.2013 and it was proceeded exparte.

3.                OP No.1 has pleaded that the name of the complainant is not mentioned in the retail invoice.  It has been averred that the wife of the complainant is using the phone and the complainant is not a consumer qua the OPs. It has been averred that every time a job is carried out job sheet is given to the customer and the complainant has concocted a false story.  It has been averred that the mobile of the wife of the complainant was swapped/replaced by the manufacturing company and the complainant was duly informed telephonically but he did not collect the same from OP No.1 and as such a letter through speed post was sent to him on 16.11.2012. The office copy of the letter is Annexure R-1 and the postal receipt is Annexure R-2.  It has been further averred that the limited warranty clearly mentions that the mobile will be repaired or replaced within the warranty period. It has been stated that the complainant has no right to ask for refund. The warranty of the mobile is valid till 3.10.2013 and the copy of the relevant portion of warranty is Annexure R-3.  It has been further stated that the replaced handset is sent by the manufacturing company and it never comes in the box as all the accessories are already with the customer. The handset is swapped and the online entry of the change of IMEI number is made and the changed number carries the rest of the warranty.

4.                In his rejoinder, the complainant has pleaded that OP No.2 is using unfair trade practices by not mentioning the name of the customers on the retail invoice. It has been averred that online records of the visit of the complainant and complaints of the set should be strictly asked for from the company.  Even in the job sheet – Annexure C-2 the name of the complainant is entered as customer.

5.                The parties led evidence in support of their contentions.

6.                We have scrutinized the entire evidence and heard the arguments addressed by the complainant in person and the learned Counsel for OP No.1.

7.                The copy of retail invoice – Annexure C-1 proves that one Nokia 311 mobile set was sold against cash to a person for an amount of Rs.6500/-. The production of the receipt coupled with the affidavit of the complainant proves that it was he who had purchased the same. The mere fact that the complainant gifted the set to his wife does not mean that he ceases to be a customer. The copy of job sheet dated 23.10.2012 – Annexure C-2 issued by OP No.1 also shows the name of the customer as Puneet Tripathi (complainant). OP No.2 who sold the said mobile set to the complainant has not come forward to contest the complaint. Hence, it is proved from the material on record that the complainant Sh.Puneet Tripathi purchased the said Nokia mobile set from OP No.2 for a sum of Rs.6500/- on 4.10.2012.

8.                 Adverting to the question of the mobile set being defective, according to the complainant, the mobile set started hanging or its touch screen got jammed and he visited Anmol Watches, OP No.2 regarding the problem within two days of purchasing the mobile set, where his set was rebooted and he was told that his phone was OK. As we have already observed that OP No.2 has not come forward to contest the case. The allegation of the complainant of visiting the shop of OP No.2 within two days of purchasing the mobile set would be deemed to have been proved. According to the complainant, since his wife complained to her that the touch screen of the phone got jammed again and again, he again visited Anmol Watches, Sector 22, Chandigarh and he was directed to take the mobile set to Nokia Care Centre, OP No.1. This allegation has also not been denied by OP No.2 by filing a written reply and contesting the case.

9.                According to the complainant he visited Nokia Care Centre, OP No.1 many times between the period from 16^th to 20^th October but the mechanic present there could not resolve his problem. OP No.1 has not been able to produce the online record of the visits and complaints made by the complainant, therefore, there is no reason to doubt the allegation of the complainant about his visits to Nokia Care Centre, OP No.1 many times. Though the complainant has specifically mentioned in para No.6 of the complaint that Nokia Care Centre told him that their service centre does not have the laser technology to deal with his defective set and they will send the same to their head office to solve the problem, yet OP No.1 has not specifically denied this fact, therefore, it would be deemed to have been admitted. According to the complainant, he deposited the set in Nokia Care Centre, OP No.1 on 20.10.2012 but the job card – Annexure C-2 was given to him bearing the date 23.10.2012. At any rate, the copy of job card – Annexure C-2 issued by OP No.1 shows that the touch of mobile of Sh.Puneet Tripathi was not working. It is the admitted case of the OP No.1 that the complainant had deposited the said set for repairs on 23.10.2012.  Thereafter, as per case of OP No.1, the set was swapped/replaced by the manufacturer. We feel that when the set was swapped/replaced by the manufacturer, this fact itself establishes that the mobile set sold by OP No.2 to the complainant was defective since the very beginning. In other words, OP No.2 sold a defective mobile set to the complainant. Now OP No.1 wants that the complainant, should accept the replaced mobile set in the open box without fresh warranty. However, the complainant is not ready to accept the same on the ground that he and his wife have undergone enough of mental harassment and since they have purchased another mobile set of another brand therefore, they are not interested in replacement but want refund of their money.

10.              We are of the view that since a defective mobile set was sold by OP No.2 to the complainant, the OPs are guilty of unfair trade practice and deficiency in service. However, the prayer of the complainant for refund of amount of Rs.6500/- cannot be accepted because as per Manufacturer’s Limited Warranty – Annexure R-3 the product can be replaced. It is nowhere mentioned that the manufacturer or the dealer are liable to refund the amount. We are of the view that the complainant cannot insist for refund of the amount but he is entitled to get the replaced mobile set in working order with a fresh warranty from the date of handing over of the mobile set by the OPs to him. For the mental and physical harassment, the complainant is entitled to be compensated by the OPs.

11.              For the reasons recorded above, the complaint is partly allowed. OPs are directed to hand over the replaced mobile set to the complainant in a perfect working condition with a fresh warranty of one year. OPs are also directed to make payment of an amount of Rs.7,000/- to the complainant towards compensation and litigation expenses.

12.              This order shall be complied with by the OPs within one month from the date of receipt of its certified copy, failing which, OPs shall refund the cost of mobile set i.e. Rs.6500/- to the complainant along with interest @ 9% p.a. from the date of purchase till realization, apart from making payment of compensation and litigation costs, as mentioned above.

13.              The certified copies of this order be sent to the parties free of charge. File be consigned to record room.