BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 729 of 2015
Date of Institution: 22.12.2015
Date of Decision:27.04.2016
Amarjit Singh s/o S.Hira Singh, R/o House No. M2/1532, Gali No.2, Guru Gobind Singh Nagar, O/s Gilwali Gate, Near Bularia Memorial Park,Amritsar
Complainant
Versus
- North India Top Company (P) Ltd., TCI Supply Chain Solutions C/o Acorn Warehouses & Logistics Park, 68, VIII-Kapriwas & Malpura, Rewari, Haryana-123106 through its principal officer
- Spice Care Centre, Cell Point, Shop No. 201-202, Sunrise Plaza, IInd Floor,Cooper Road, Near Bakewell Bakery,Amritsar through its Partner/Prop.
- Spice Retail Limited, Regd.office at S.Global knowledge park, 19-A, 19-B, Sector 125, Noida-201301(UP) through its principal officer
Opposite Parties
Complaint under sections 11 & 12 of the Consumer Protection Act, 1986
Present: For the Complainant : In person
For the Opposite Party No.1 : Ex-parte
For Opposite party No.2 : Sh.Sanjit Singh,Advocate
For Opposite party No.3 : Ex-parte
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Amarjit Singh complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainant placed an online order with the opposite party No.1 for purchase of one mobile set of Spice Mobile company on 8.9.2014 Model M1506 black,IMEI No. 911313251641945 for an amount of Rs. 5499/- which was delivered through Aramex courier by opposite party No.1 vide invoice dated 9.9.2014. The delivery of the mobile handset was made to the complainant at his house after about one week. The complainant made cash payment of the amount of Rs. 5499/- on its delivery . Spice mobile company is the manufacturing company, whereas opposite party No.1 is the authorized dealer while opposite party No.2 is their authorized service centre. As such, the complainant having hired the services of the opposite parties for consideration, is a consumer as defined under the Consumer Protection Act, 1986 and has a right to invoke the jurisdiction of this Forum for redressal of his grievance by filing the complaint . The mobile hand set in dispute was not properly functioning and it was giving problem of power key and software. The complainant was not able to use it properly. The mobile hand set went out of order after about 2 months of its purchase. Accordingly, the complainant visited the service centre of opposite party No.2 and brought to their notice the defects in the mobile handset. Opposite party No.2 checked the mobile handset and found the defects stated above by the complainant and they retained the mobile handset for about one month and thereafter returned the same stating that the same has been repaired and the mobile handset will work properly. But to the utter surprise of the complainant, again mobile handset went out of order and did not work properly. The complainant again visited the opposite party No.2 and brought to their notice that the mobile handset was not working properly. Opposite party No.2 again kept the mobile handset for about a month and returned the same stating that it has been set right and will give proper service. But such assurances of the opposite party No.2 were false and frivolous because the mobile handset was giving the same problem. Lastly opposite party No.2 issued job sheet No. 4247 dated 16.10.2015 regarding the mobile handset and they opened the mobile handset in the presence of the complainant and stated that there was manufacturing defect in the mobile handset and it will be sent to the main branch for its repair/replacement of the part and asked the complainant to come after about one month. But, however, opposite party No.2 failed to deliver back the mobile handset stating that it has not been received back from their main branch. Even the main branch when contacted on phone, failed to give any satisfactory reply. As such , since 16.10.2015 the mobile handset is lying with opposite party No.2. The complainant has suffered a great loss on account of negligence, carelessness and deficiency in service on the part of the opposite parties and as such the complainant is entitled for refund of the sale price of Rs. 5499/-, besides compensation amounting to Rs. 25000/- alongwith cost of litigation. Hence, this complaint.
2. Upon notice, opposite parties No.2 & 3 put in appearance and filed separate written versions to controvert the allegations made in the complaint. However, opposite party No.1, after due service did not opt to appear and contest the complaint, as such opposite party No.1 was ordered to be proceeded against ex-parte.
3. In the written version filed on behalf of opposite party No.2, preliminary objection was taken to the effect that the complainant could not produce any documentary evidence on record with the complaint and the mobile handset was not having any manufacturing defect. In such a situation the mobile handset cannot be ordered to be replaced. No case has also been made out for refund of the price. On merits, it is stated that the complainant has never approached opposite party No.2 i.e. service centre. The complainant has put-forth a cooked story. The complainant is not bonafide and as such he could not produce any documentary evidence on record to prove his various visits to the service centre for getting the mobile handset repaired. It is submitted that according to para No.1 of the complaint, complainant had purchased the mobile handset on 8.9.2014 and after the expiry of the warranty period i.e. more than one year, the complainant approached the replying opposite party service centre on 16.10.2015 vide job card No. 4247 with power key problem. It is important to mention here that the mobile handset was not covered under the warranty period at that time. This fact was told to the complainant that the mobile handset will be repaired subject to charge of labour cost, part cost etc. and after obtaining the oral consent of the complainant, the set was retained and job sheet was issued to the complainant with a request to come on the next day for deposit of some money in advance. It is pertinent to mention here that from 16.10.2015 till date the complainant has neither attended the office of opposite party No.2 i.e. service centre. Remaining facts mentioned in the complaint have also been denied and a prayer for dismissal of the complaint with cost has been made.
4. In the written statement on behalf of opposite party No.3, preliminary objections have been taken to the effect that present complaint is totally misconceived, groundless and unsustainable in the law and is liable to be dismissed ; that the present complaint is not maintainable as there is no deficiency on the part of the answering opposite party, as alleged. In view of the same, the complaint should be dismissed ; that the insured opposite party possessed a goodwill and have an established market and have assumed a good reputation over the years in respect of the business which they carried out. It is pertinent to mention here that allegations made in the complaint filed by the complainant are false in nature ; that the Consumer Protection Act, 1986 is an act for better protection of the consumer’s interest. But it does not appreciate the acts which certain consumers adopt to fulfill their illegal gains via means of act i.e. pleading for extra compensation, damages etc ; that answering opposite party acted in good faith and offered the best of it services to the complainant of device. In ordinary circumstances bonafide action has been taken by the answering opposite party, which cannot be held to be as deficiency in service. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.
5. During the course of the proceedings on 2.3.2016 Sh. Karan, Hardward and Softward Engineer of Cell Hut,opposite party No.2 made a statement before the Forum that he has brought the mobile handset in question belonging to the complainant after repair for handing over the same to him. But,however,at the same time, complainant Amarjit Singh suffered a statement that he does not accept the mobile handset in question after repair. Thereafter the case was ordered to be listed for evidence of the complainant.
6. In his bid to prove the case, complainant Amarjit Singh tendered into evidence his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 and C-3 and closed his evidence.
7. To rebut the aforesaid evidence, counsel for opposite party No.2 tendered into evidence affidavit of Sh.Sahil Arora Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.
8. Opposite party No.3 during the course of proceedings also suffered ex-parte.
9. We have heard the Ld.counsel for the complainant as well as counsel for opposite party No.2 and have carefully gone through the record on the file.
10. It is the case of the complainant that he has purchased mobile handset in dispute on 8.9.2014 for an amount of Rs. 5499/- vide invoice dated 9.9.2014, copy whereof is Ex.C-3.So far as purchase of the mobile handset in dispute is concerned, the same has not been disputed by the answering opposite parties. But,however, the mobile handset went out of order and it is the case of the complainant that he had to approach the opposite parties for number of times to get the mobile handset in dispute in order. But on each and every occasion, the service provider failed to rectify the defect of the mobile handset in dispute. Ultimately opposite party No.2 retained the mobile handset in dispute on 16.10.2015 and has failed to return the same so far to the complainant after effecting necessary repairs, copy of the job card accounts for Ex.C-2. The very fact that opposite party No.2 has been retaining the mobile hand set in dispute since 16.10.2015 and has failed to return the same to the complainant shows gross negligence and deficiency in service on the part of opposite party No.2. The contention that opposite party No.2 had brought the original mobile handset after due repairs, in the Forum on 2.3.2016 and the complainant refused to accept the same, is not tenable because at that time, the complainant has suffered a lot because the complaint in this case, was filed as early as on 22.12.2015, whereas the alleged offer came only on 2.3.2016. Even prior to that complainant has been visiting opposite party No.2 for redressal of his grievance , but without any effect. As a matter of fact, the complainant was hesitant to accept the mobile handset in dispute at that time because he also needed due compensation for the deficiency on the part of the opposite parties. Moreover, the offer made on behalf of opposite party No.2 still subsists and the same has not been withdrawn so far.
11. Keeping in view the facts and circumstances of the case, the complaint is allowed to the effect that the opposite parties shall return the mobile handset in dispute after full repair to the satisfaction of the complainant, within a period of one month of the passing of this order after obtaining proper receipt. If the mobile handset in dispute is not returned within the stipulated period, the opposite parties shall refund the sale price of the mobile handset in dispute to the tune of Rs. 5499/- alongiwth compensation to the tune of Rs. 1000/- within a further period of two months . If the opposite parties fail to comply with the order, the complainant shall be at liberty to get the order enforced through the indulgence of this Forum. In that eventuality, the awarded amount shall carry interest @ 6% p.a. from the date of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 27.4.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
