Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-247/2017
Om Prakash s/o Late Sh. Nathuram
R/o B-398, Ist Floor, Avantika, Sector-01,
Rohini, Delhi-110085 ...Complainant
Versus
OP1 Poonam Mobile (through Pulkit Dhawan)
G-3, Asia Plaza, Regent Mall,
Hardhyan Singh Road, Karol Bagh,
New Delhi-110005
OP2 S.S. Cell Point
SICT Service Centre (Delhi) C-22, Gali No.1,
Bhajanpur, Wazirabad Road, Delhi-110053
OP3 SICT Mobiles India Pvt. Ltd.
B-122, Sector-88, Phase-II, Noida,
Uttar Pradesh-201306 ...Opposite Parties
Date of filing: 17.10.2017
Date of Order: 17.05.2023
Coram: Shri InderJeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1.1 (Case/dispute of the parties): The complainant had bought a mobile handset for Rs. 1,000/- from OP1, it was troubling and then it was taken to customer service centre of OP2 and OP3 but no result. The OP1 had issued a rough receipt of bill despite asking for cash invoice, which was refused by the OP1. The service provider failed to rectify the fault. The problem persisted. There is deficiency of services by the OPs. That is why the complaint.
1.2 Whereas, the OP2 and the OP3 had not contested the complaint by remaining absent but OP1 opposed the complaint by filing detailed reply. Firstly, the complainant never purchased any mobile handset from the OP1 nor any rough receipt was prepared or issued and the complainant has misused visiting card of Poonam Mobile. The complaint is false and frivolous, it is liable to be dismissed.
1.3 The original complaint filed was got amended by the complainant prior to notice to the OPs. Moreover, the OP1 was served. There were either change of addresses of OP2 and OP3 or otherwise; there were fresh addresses, both of them were served at such addresses, however, for want of their appearance OP2 and OP3, both were proceeded ex-parte on 26.11.2019. Moreover, during the pending of the complaint, the complainant and OP1 were referred to Lok Adalat, however, they could not succeed in settlement.
1.4 Since, there is amendment in the complaint as well as amendment in the memo of parties because of fresh/changed addresses of OP2 and OP3, the narration of the case will be on the basis of amended pleadings.
2. (Case of complainant): As per amended complaint, it was 24.02.2017, when the complainant went to shop of OP1, where one lady Poonam and a gentleman were sitting, the complainant asked for CDMA and GSM mobile handset. The complainant was shown and presented a packed mobile handset and he was described features of the product, the complainant was not aware about the model of mobile handset in the packed packet. The mobile handset is having IMEI No. 1: 366613070416964 of SICT Company purchased from OP1. The said lady asked her servant to prepare a bill, simple rough cash memo was issued without describing name and address but customer care number 9968640443 was manually written. The complainant smell some foul play, he enquired what to do, in case of any problem or defect is found in the handset, then it was replied that it is product of INTEX company and in case of any complaint, the product will be replaced.
2.1 The complainant came at his residence, he inserted sim card in the mobile handset as per instructions in manual and it was also noticed that product was of INTEX company was not mentioned any where. Moreover, there was problem in the mobile handset, it was giving low voice while talking, even it was giving problem after increasing the voice level. The complainant went to OP1 within one week with such complaint and he was advised to visit customer care centre, complainant also tried to contact at their customer care number in March/April 2017 but there was no success.
2.3 The complainant further narrates the episode in detail that how he faced many difficulties in locating and searching the physical location of customer care centre, when he succeed to locate them, his grievances were not addressed and mobile phone deposited was returned to him. He approached the OP1 for replacement of mobile phone and to issue correct bill, OP1 asked Rs. 300/- in lieu of correct bill. The complainant protested it and asked identity card of OP1, then he was threatened. The customer care centre was given mobile phone 01.06.2017 and after two visits, the handset was returned on 19.06.2017, however, instead of removing the actual problem in handset, the voice volume was fixed by default, which cannot be customized (low or high). Moreover, when the mobile handset was used, a low quality of earphone was supplied, FM of handset was also not in working condition and these problem were not addressed. Complainant again went to customers service centre to deposit the handset there, but no date was being advised for return of the handset, the complainant try to contact the company on telephone but there was no success. That is why complaint has been filed for replacement of existing mobile handset, apart from penalty of Rs.1,00,000/-.
3. (Case of OP) - The OP1 filed compact reply, under the heading of preliminary objections and composite reply in one sentence/paragraph on merits of entire complaint by way of general denial. The OP1 contends that complainant is not a consumer nor OP1 is a service provider, since SICT mobile phone was not being dealt by the OP1 nor it was sold to the complainant. The complaint is liable to be dismissed.
Moreover, there was no lady by name Poonam present at the shop, as alleged in the complaint. Poonam is name of mother of Sh. Pulkit Dhawan. It is Pulkit Dhawan and his brother, who are operaing the said shop, and prior to them it was their father, who used to sit in the shop. The complainant has misused the visiting card of Poonam Mobile. If one is keeping visiting card of a shop keeper or businessmen or of a doctor or Advocate, it does not mean he must have availed the services of such person. The other documents being relied upon by the complainant were never issued by OP1. The complainant also denies other allegations of complaint by simple and general denial in one sentence. The complaint is liable to be dismissed.
4. (Rejoinder) - The complainant filed detailed rejoinder to the reply of OP1 and allegations of reply are denied by reaffirming the complaint that the documents were filed with the documents were issued by the OP1, when mobile phone was purchased and OP1 had refused proper bill because the mobile phone given is of Chinese company, it was told that no invoice will be issued of sale of Chinese phone. The complainant also explains that there are admission of facts in the complaint that Poonam is the name of mother of Pulkit Dhawan, they are operating business of sale and purchase of mobile phone under the name M/s Poonam Mobile. It is rightly opined by OP1 that merely possessing the visiting card of any person would not be construed availing of services of such person, however, the complainant had visited the OP1 with regard to trouble in mobile phone after its purchase, after repeated visits a visiting card was handed over, the same visiting card was filed with the complaint. The OP1 had refused to issue proper invoice/bill of mobile phone on specific request and demand.
5. (Evidence of the parties): Complainant Om Prakash filed his own affidavit of evidence, it is supplemented with documentary record of rough bill issued, visiting card, SICT warranty certificate and copy of acknowledgment of customer care cell. On the other side, Sh. Pulkit Dhawan of OP1 filed his affidavit of evidence on the pattern of reply and his witness Kulbhushan Dhawan also filed a separate affidavit that he is knowing the operation of business of OP1 because he is a frequent visitor of the shop; his affidavit is also on the pattern of Shri Pulkit Dhawan.
6. (Final Hearing): The complainant filed his written arguments. OP1 was also given opportunities to file written arguments but it failed, it was closed on 22.09.2022. Moreover, Sh. M.M. Siddiqui Advocate (LAC) for complainant also made oral submission. OP1 had not appeared to make arguments.
7 (Findings): The contentions are considered, on the basis of material available in the form of evidence of the parties. It does not require to reproduce their contentions, since it will be dealt appropriately.
7.2 After analyzing the contentions and record, the following conclusions are drawn:-
(i) There is no dispute that OP1 deals in mobile phones and the visiting card Poonam Mobile produced in evidence by the complainant pertains to shop of OP1.
(ii) As per OP1 Sh. Pulkit Dhawan and his brother operate the shop, the visiting card on record also shows the name of Pulkit Dhawan and of others.
(iii) As per material on record, the complainant had visited number of times at the shop of OP1, firstly for buying the mobile handset and thereafter to get resolved the trouble in mobile handset bought as well as for invoice bill, but it was not resolved.
(iv) The OP1 is contending as if the complainant took the visiting card and misused the same or if a case of mistaken identity, whereas on plain reading the events in sequence, the facts narrated by complainant are in the natural course and the circumstance being suggested by OP1 are not in natural form.
(v) The complainant has also narrated specifically that the bill form issue was not prepared by a lady or other gentleman sitting in the shop but an employee/servant was asked to prepared the bill, there is no specific explanations or reply by the OP1 in this regard; it is deemed to be admitted by the OP1.
(vi) The circumstances dispel the plea of OP1 that there is mis-use of visiting card, since complainant has proved the rough bill form issued and then visiting card was given to him, both the inter-related with each other apart from personal visits of complainant at the shop.
(vii) The complainant approached OP1 and OP2 repeatedly for redressed of his grievances through the customer care centre, he had to push hard to locate the addresses of OP2 and OP3 but it has not result anything in favour despite visiting them.
(viii) The rough bill issued by OP1 mentions the contact number of customer care centre, whom complainant had contact initially and on the same bill there is endorsement of ringer change by S.S. Cell Point, who is OP2. The warranty is also by S.S. Cell Point and it was issued on behalf of SICT mobiles, OP3.
(ix) This sequence of events show that the complainant had also went to service provider as well as at other places to get rid of trouble of mobile phone, however, the problem in the mobile handset was not rectified, it was once repaired but the problem was still persisting and
(ix) Generally, once a produce is sold against proper invoice/bill, the responsibility of seller is over, subject to exception or agreement. However, in the present case the OP1 failed to issue proper invoice/bill to the complainant of payment received against sale of mobile handset, it is deficiency of services and unfair practice too on the part of OP1.
7.3 The aforementioned circumstances clearly establish that the complainant was sold the mobile handset (without proper bill), which was not useable and it was creating troubles from the inception, it was not rectified despite attempt by the service provider and the said problem remained continued and it is still persisting. The product was suffering from this problem from the inception and it was not completely repaired or replaced by the OPs. Therefore, the complainant is held in titled for return of price of Rs. 1,000/- of mobile handset, in lieu of mobile handset. Although, the complainant has prayed for replacement of mobile handset, however, long time of more than seven years have been passed and it is not known whether or not as on today same model is available or prevalent in the market; thus it is being felt appropriate to direct for return of amount/price of mobile hand-set.
The complainant has also sought compensation of Rs. 1,00,000/- but the expression given in the prayer clause is to impose penalty; the complainant actually seeks damages. However, the complainant has not established his source of income as well as his income but mobile handset was bought by him for Rs. 1,000/-. By considering that he had to make lots of efforts to locate the customers care centre physically as well as to visit there for getting his mobile handset okay; for that he had also faced all physical inconvenience and other trauma after buying phone. Thus, compensation of Rs. 5,000/- will meet both ends.
Since, the complaints pertains to the year 2017, the mobile handset was bought for Rs. 1,000/- at that time, therefore, in order to reconcile with update situation, interest at the rate of 7% p.a. from the date of complaint till realization of the amount is also allowed. No order as to cost. No order as to return of old defective mobile hand set under these circumstances.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP1, OP2 and OP3 to return/pay jointly or severally a sum of Rs.1,000/- along-with simple interest of 7% p.a. from date of complaint till realization of amount, apart from damages of Rs.5,000/-.
The amount will be payable within 30 days from the receipt of this order, failing which the interest will be increase from 7% pa to 9% pa.
9. Announced on this 17th May, 2023 [वैशाख 27, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [Shahina] [InderJeet Singh]
Member Member (Female) President
