Haryana

Ambala

CC/212/2014

MANISH SEHGAL - Complainant(s)

Versus

PREM PARKASH BHARGAV - Opp.Party(s)

C.M SEHGAL

03 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.      : 212 of 2014

Date of Institution         : 11.08.2014

Date of Decision            : 03.06.2015

Manish Sehgal Alias Rasvinder Sehgal son of Sh. Narinder Nath Sehgal, R/o H.No.2884/2, Jagadhri Gate, Ambala City.                                                                                                                                                                                                                       ……Complainant.

                                                                                          Versus

1.       Prem Paraksh Bhargav, Om Sai Communication, Bindra Complex, Jagadhri Gate, Ambala City.

2.       Guru Mobiles Reapir through its Prop. Court Road (Corner of Badshahi Bagh Gurudwara Road) Ambala City.

3.       Authorized person Karbonn Mobiles, Jaina Marketing & Associates, D-170, Okhla Industrial Area, Phase-I, New Delhi-      110020.

                                                                                                                                              …....Opposite Parties.

                                                 Complaint Under Section 12 of the Consumer Protection Act.

CORAM:    SH. A.K. SARDANA, PRESIDENT.

                   SH. S.C. SHARMA, MEMBER.                                     

Present:       Sh.  C.M. Sehgal, Adv. counsel for complainant.

                   OP No.1 in person.

                   OP No.2 exparte.

                   Sh. Mohit Tayal, Adv. counsel for Op No.3.

ORDER.

1.                 Brief facts of the present complaint are that the complainant purchased a Mobile Phone of Karbonn Company on 08.01.2014 for a sum of Rs.6500/- vide receipt No.796 and the said mobile phone started giving problems very soon after its purchase. So, the complainant visited service centre-OP No.2 for its repair.  The OP No.2 checked the mobile set and retained it for repair and returned back after a month. The complainant alleged that again the mobile phone started giving problem hence the complainant again visited OP No.2 on 04.08.2014 for repair of the mobile set and the OP No.2 returned the mobile set stating that it is not repairable as it is having major defect. As such, the complainant approached the OP No.1 for replacing the mobile set but he refused to replace the same. Thus the complainant has prayed that there is deficiency in service on the part of the OPs.  Hence, having no alternative, complainant preferred the present complaint seeking relief as mentioned in the prayer para.

2.                Upon notice, Op No.1 appeared in person and filed written statement raising preliminary objections qua non-maintainability of complaint, locus standi and suppression of material facts. On merits, it has been stated that he has sold the mobile set in question to the complainant in a good condition and without any defect but the complainant reported  the defect  of the mobile set to him  and he advised him to go to service centre of the company i.e. OP No.2. It has been further submitted that the complainant again approached the answering OP for replacement of the mobile set but the same appeared to be mishandled and thus the answering OP refused to replace the same. Therefore, the answering OP has urged that there is no deficiency on his part and prayed for dismissal of the complaint with costs.

3.                OP No.2 did not bother to appear inspite of service of notice and as such, he was ordered to be proceeded against exparte vide order dated 21.11.2014.

4.                OP No.3 also appeared through counsel and filed its separate written statement raising preliminary objections qua non-maintainability of complaint, no cause of action, no jurisdiction and complaint is bad for mis-joinder & non-joinder of necessary parties etc. On merits, it has been urged that the complainant visited the answering OP and showed the mishandled, damaged and broken mobile which was  not covered in warranty and the Op No.2 immediately returned the said mobile set to the complainant.  Rest of the contents of complaint have been denied and prayed for dismissal of the complaint with costs.

5.                In evidence, the counsel for complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 to C-3 i.e. Annexure C-1 (Bill for purchase of the mobile set), C-2 (warranty card) & C-3 (Service Job Sheet  dated 04.08.2014) and closed the evidence on behalf of complainant whereas on the other hand, counsel for Op No.3 tendered in evidence affidavit of Sh. Gajender Chandel, Area Service Manager, Haryana, Jaina Marketing & Associates as Annexure RX and closed their evidence.

6.                We have heard the learned counsel for the parties as well as gone through the case file very carefully.  The main grievance of the complainant is that he purchased the mobile set in question from the OP No.1 on 08.01.2014 for a sum of Rs.6500/- and after sometime, the mobile phone started creating problem of ‘Fault in Touch Screen’ which could not be rectified by the OP No.2 despite various visits of complainant to the service centre of the OP-company  whereas the mobile set was well within warranty period. It has been further argued by the counsel for the complainant that  when the mobile set in question was not working properly, the OP No.2  returned the mobile set on 07.08.2014 without repair saying that it is having some major manufacturing defect which cannot be rectified.  The complainant has further relied upon the case law reported in 2008(1)CLT Page 15 rendered by Hon’ble National Commission in case titled as Soni Ericsson India Ltd. Vs. Ashish Aggarwal and 2007(1) CLT Page 614 passed by Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh in case titled as Head, Marketing and Communication, Nokia Vs. Ankush Kapoor and others wherein it is held  that inspite of repair of mobile set,  it did not work and thus observed that the handset was having inherent defects and refund of the cost of mobile was ordered.

                   On the other hand, the OP No.1 and counsel for the Op No.3 have argued that the complainant has brought the mishandled/ broken mobile set to their service centre and as per warranty, mishandled/broken set is not covered in the warranty conditions.  As such, there is no deficiency in service on the part of OPs.

7.                After hearing learned counsel for the parties and going through the record, it is crystal clear from document Annexure C-1 that the mobile set in question was sold by the OP No.1 to the complainant on 08.01.2014 which occurred problem of ‘Touch Panel Faulty’ as clear from document Annexure C-3 i.e. Service Job Sheet but the Ops failed to rectify the defect and returned the same to the complainant without repair whereas the version put by the Ops that the mobile set was brought to their service centre in broken condition is not believable as they have not mentioned this fact in their job sheet rather they have only remarked the defect as ‘Touch Panel Faulty’.  Moreover, if the set was in broken condition, then it might have been returned by the service centre immediately to the complainant and there was no need for issuing the job sheet and retaining the mobile set for three days.  

                   From the above discussed facts, we have come to the conclusion that the version put forth by the complainant is believable and the mobile set was having some functional/technical problem and as such the complainant was deprived of  from the facility of mobile phone from the date of its defect to till date. Hence, it is a clear cut case of unfair trade practice and deficiency in service committed by OP No.3-company with the complainant. Accordingly, the complaint is accepted and OP No.3 is directed to comply with the following directions within thirty days from the communication of copy of order:-

1. To refund the cost of mobile set to the complainant to the tune of Rs.6500/- as per invoice alongwith simple interest @ 9% per annum from the date of  filing of complaint till its realization.
2. To pay Rs.2000/- as compensation on account of mental agony and harassment as the complainant remained deprived of from the facility of mobile set.
3. Also to pay a sum of Rs.1000/- as litigation charges.

 

                   Further the award in question/directions issued above shall be complied with by the OP No.3 within stipulated period failing which all the awarded amounts  shall further attract simple interest @ 12% per annum for the period of default. So, the complaint is allowed in above terms. Copies of this order be sent to the parties concerned, as per rules.  File be consigned to the record room after due compliance. 

Announced:03.06.2015

                                                                                         Sd/-

                                                                            (A.K. SARDANA)

         PRESIDENT        

         

                                                                                        Sd

         (S.C.SHARMA)       

                                                                                      MEMBER