Order by:
Sh.Amrinder Singh Sidhu, President
The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he is a labourer and working as a plumber i.e. the repair works of fittings, repairs and services of sanitary work in Moga or within the surrounding areas of Moga District and he was urgent need of mobile phone to contact his day to day clients to earn his livelihood, and so believing the allurement of the Opposite Party No.1 regarding the best services of the company, he purchased one Mobile Set i.e. Oppo Mobile-F9 Pro, having IMEI No.866778045810755, colour Sunrise red, having warranty of 6 months regarding its accessories, battery, charger, head phone etc.) from Opposite Party No.1 through Opposite Party No. 2 worth Rs.23,990/- vide invoice No. 3274 dated 19.09.2018 and hence, he is a ‘Consumer’ of the Opposite Parties. Further alleges that since the date of purchase of the Mobile Set in question, it is giving problems such like heating when using, hanging as well as memory lost etc. and within few days from the date its purchase, the complainant got the same checked up through the authorized service centre of the company i.e. from Opposite Party No.3 at Moga, but after some software settings, said Service Centre had returned the Mobile Set in question to the complainant, but since the date of its purchase, the complainant is not satisfactory from the Mobile Set in question purchased by him. He Complainant further alleges that in the second week of its purchase, the mobile set in question again started giving problem like heating, hanging and memory loss etc, the complainant again visited the service centre of the Opposite Parties i.e. at Opposite Party No.3, but again after some setting, Opposite Party No.3 returned the mobile set in question to the complainant, but however, again the complainant was not so much satisfactory. Again on 22.10.2018, the mobile set in question started giving same problem, i.e. heating when using, hanging and memo loss, and again the complainant visited the service centre of the complainant i.e. with Opposite Party No.3, but as usual, Opposite Party No.3 again handed over the mobile set in question to complainant after making some hardware settings and the mechanic of Opposite Party No.3 without disclosing his name told the complainant that that there is some manufacturing defect in the Mobile Set in question and then the complainant asked Opposite Party No.3 i.e. Authorized Service Centre of the Company that the Mobile Set in question is in guarantee period because it is purchased on 19.09.2018, which is less than six months, and requested to replace the mobile set in question with new one, but he refused to admit the rightful claim of the complainant. Further alleges that since the date of purchase of the product in question, the complainant is wandering here and there, and visiting the Authorized Service Centre of the Company for getting his mobile set in question repaired to his satisfaction, but he got no response and hence, the complainant suffered mental tension and harassment also. The aforesaid acts of the Opposite Parties in not providing the best services to the complainant without any reason is an act of deficiency in services, mal practices, Unfair Trade Practice and has caused lot of mental agony, harassment, inconvenience besides his study loss. Vide instant complaint, the complainant has sought the following reliefs.
- To replace the product in question of same make and model or in alternative to refund the price of the Mobile Set in question i.e. Rs.23,990/- alongwith interest @ 12% per annum from the date of payment till its realization.
- And also to pay Rs.50,000/- as compensation for causing him mental tension and harassment besides Rs.10,000/- as costs of litigation and
- Any other relief which this Hon’ble District Commission may deem fit and proper may be awarded to the complainant.
Hence this complaint.
2. Upon notice, Opposite Parties No.1 and 3 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable in the present form and that the Complainant is stopped by his own act and conduct to file the present complaint. On merits, it is alleged that admitted the Complainant had purchased the mible in question worth Rs.23,990/- against invoice No. 3274 dated 19.09.2018, but it is incorrect that it was giving problem of heating when using, hanging as well as memory loss within two days from the date of its purchase. It is further alleged that on 22.10.2018 the Complainant visited the Opposite Parties with the complaint of heating when using, hanging and memory loss and asked for replacement, but on checking it was found that there was no problem at SC, but the Complainant wanted replacement which was refused, hence there is no deficiency in service on the part of the answering Opposite Parties. All other allegations have been denied and a prayer for dismissal of the complaint with heavy costs has been made.
3. On the other hand, none has appeared on behalf of Opposite Party No.2 despite service, hence Opposite Party No.2 was proceeded against exparte vide order dated 01.02.2019 of this District Commission.
4. In order to prove his case, complainant tendered into evidence his affidavit Ex.C1 alongwith copy of bill Ex.C2, copy of job sheet Ex.C3 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 3 tendered into evidence the affidavit of Sh.Laksita Pandit Ex.OP1, copy of resolution Ex.OP2, copy of Work Order view Ex.OP3 and closed the evidence.
6. We have heard the Complainant as well as Ld.counsel for Opposite Parties No. 1 and 3 and also perused the written arguments of Opposite Parties No.1 and 3 and have carefully gone through the evidence on record.
7. The Complainant has reiterated the averments as narrated in the complaint and contended thathe is a labourer and working as a plumber i.e. the repair works of fittings, repairs and services of sanitary work in Moga or within the surrounding areas of Moga District and he was urgent need of mobile phone to contact his day to day clients to earn his livelihood, and so believing the allurement of the Opposite Party No.1 regarding the best services of the company, he purchased one Mobile Set i.e. Oppo Mobile-F9 Pro, having IMEI No.866778045810755, colour Sunrise red, having warranty of 6 months regarding its accessories, battery, charger, head phone etc.) from Opposite Party No.1 through Opposite Party No. 2 worth Rs.23,990/- vide invoice No. 3274 dated 19.09.2018 and hence, he is a ‘Consumer’ of the Opposite Parties. Further alleges that since the date of purchase of the Mobile Set in question, it is giving problems such like heating when using, hanging as well as memory lost etc. and within few days from the date its purchase, the complainant got the same checked up through the authorized service centre of the company i.e. from Opposite Party No.3 at Moga, but after some software settings, said Service Centre had returned the Mobile Set in question to the complainant, but since the date of its purchase, the complainant is not satisfactory from the Mobile Set in question purchased by him. He Complainant further contended that in the second week of its purchase, the mobile set in question again started giving problem like heating, hanging and memory loss etc, the complainant again visited the service centre of the Opposite Parties i.e. at Opposite Party No.3, but again after some setting, Opposite Party No.3 returned the mobile set in question to the complainant, but however, again the complainant was not so much satisfactory. Again on 22.10.2018, the mobile set in question started giving same problem, i.e. heating when using, hanging and memo loss, and again the complainant visited the service centre of the complainant i.e. with Opposite Party No.3, but as usual, Opposite Party No.3 again handed over the mobile set in question to complainant after making some hardware settings and the mechanic of Opposite Party No.3 without disclosing his name told the complainant that that there is some manufacturing defect in the Mobile Set in question and then the complainant asked Opposite Party No.3 i.e. Authorized Service Centre of the Company that the Mobile Set in question is in guarantee period because it is purchased on 19.09.2018, which is less than six months, and requested to replace the mobile set in question with new one, but he refused to admit the rightful claim of the complainant. Further contended that since the date of purchase of the product in question, the complainant is wandering here and there, and visiting the Authorized Service Centre of the Company for getting his mobile set in question repaired to his satisfaction, but he got no response and hence, the complainant suffered mental tension and harassment also. The aforesaid acts of the Opposite Parties in not providing the best services to the complainant without any reason is an act of deficiency in services, mal practices, Unfair Trade Practice.
8. On the other hand, Ld.counsel for Opposite Parties No.1 and 3 has repelled the aforesaid contention of the Complainant on the ground that admitted the Complainant had purchased the mobile in question worth Rs.23,990/- against invoice No. 3274 dated 19.09.2018, but it is incorrect that it was giving problem of heating when using, hanging as well as memory loss within two days from the date of its purchase. It is further alleged that on 22.10.2018 the Complainant visited the Opposite Parties with the complaint of heating when using, hanging and memory loss and asked for replacement, but on checking it was found that there was no problem at SC, but the Complainant wanted replacement which was refused, hence there is no deficiency in service on the part of the answering Opposite Parties.
9. It is not disputed that the complainant purchased one Mobile Set i.e. Oppo Mobile-F9 Pro, having IMEI No.866778045810755, colour Sunrise red, having warranty of 6 months regarding its accessories, battery, charger, head phone etc.) from Opposite Party No.1 through Opposite Party No. 2 worth Rs.23,990/- vide invoice No. 3274 dated 19.09.2018. In the copy of bill Ex.C2, it is clearly mentioned that there is warranty upto 6 months regarding its accessories, battery, charger, head phone etc. The case of the Complainant is that within six months from the date its purchase, the mobile set in question started giving problems such like heating when using, hanging as well as memory lost etc. and he got the same checked up through the authorized service centre of the company i.e. from Opposite Party No.3 at Moga, but he got no response and finally refused to admit the rightful claim of the Complainant. On the other hand, Opposite Parties No.1 and 3 in its reply and in para No. 4 of duly sworn affidavit of Laksita Pandit authorized signatory of the Company Ex.OP1 has specifically admitted that on 22.10.2018 (i.e. within one month and 3 days from the date of the purchase of the mobile set in question) the Complainant visited the Opposite Parties with the complaint of heating when using, hanging and memory loss. The Complainant further contended that mechanic of Opposite Party No.3 without disclosing his name told the complainant that that there is some manufacturing defect in the Mobile Set in question and then the complainant asked Opposite Party No.3 i.e. Authorized Service Centre of the Company that the Mobile Set in question is in guarantee period because it is purchased on 19.09.2018, which is less than six months, and requested to replace the mobile set in question with new one, but he refused to admit the rightful claim of the complainant and this averment of the Complainant has nowhere denied by the Opposite Parties.On the other hand, Opposite Parties have failed to give satisfactory reply regarding non manufacturing defect in the Mobile Set in question through any cogent and convincing evidence. The case of the complainant is that the Mobile Set in question is having manufacturing defect and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
In the instant case, the mobile set in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also proved on record the copies of documents Ex.C2 to Ex.C3. The evidence produced on record by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.
10. So, from the entire unrebutted evidence produced by the complainant on record, it stands fully proved on record that the mobile set of the complainant was suffering from inherent defects, which did not admit repair/ rectification. As argued above by the ld.counsel for the complainant that he has been harassed badly all the time without any reasonable cause and requested to refund the price of the mobile set in question alongwith interest and to pay Rs.50,000/- as compensation for causing him mental tension and harassment besides Rs.10,000/- as costs of litigation. But however, the claim for compensation to the tune of Rs.50,000/- is concerned, the same appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.5,000/- and we award the same accordingly.
11. In views of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against all the Opposite Parties. All the Opposite Parties are jointly and severally directed to refund the amount of Rs.23,990/- i.e. price of the mobile set in question alongwith interest @ 8% per annum from the date of filing the complaint till its payment. All the Opposite Parties Opposite are also directed to pay Rs.5,000/- as lumpsum compensation to the complainant. Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bhatinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.
Announced in Open Commission.
Dated: 12.03.2021.
