Order-17.

Date-22/06/2015.

Complainant Biplab Das by filing this complaint submitted that complainant purchased a mobile having detail A-120 Micromax Canvas mobile set being Model No. A-120 (Grey) SERMONO456/911367102125672, 911367102376671 at a consideration of Rs. 10,050/- from the op no.1 on 24.05.2014 by invoice no. RN/2596/2014-15.But after purchase of the said mobile from op no.1 within the warranty service many problems were detected for using the said mobile for that reason on 25.06.2014 the complainant deposited the same in the shop of op no.2 for repairing of the said mobile set and the op no.2 also received the same for repair by job sheetno. E030741-0614-10452752 and after depositing of the mobile for repairing the op no.2 remained silent about the repairing work of the mobile of the complainant.Though complainant contacted with the op several times after deposit of the said mobile for repairing to enquire about the same but they paid no heed and kept deferring the matter on one pretext or another.Though complainant requested several times to the op to give the mobile set because mobile is a very essential for him and when op nos. 1 & 2 neglected to provide and arrange a new mobile set.

On 21.07.2014 the Ld. Advocate of the complainant sent a letter by courier service to the op nos. 1 & 2 for taking steps about the matter and returned the mobile in good condition and after receipt of the same, on 30.07.2014 the Ld. Advocate of the op no.1 gave reply to the complainant admitting that the mobile was defective and assured that the said defective mobile set would be replaced by a new mobile set within 15 days.But even after that op did not take any step, they did not replace the same and also not making any arrangement for that and to avoid the responsibility they kept mum and for deficient and negligent manner of service and also adopting deceitful manner of practice, complainant has filed this complaint for directing the op to replace the defective mobile set with a new mobile set or refund the entire amount along with compensation etc.

Notices were duly served upon all the ops, but op no.1 by appearing and filing written statement submitted that there was some problem in the mobile for which op no.1 deposited the mobile set to op no.2 the authorized service centre of Micromax the manufacturer as mobile was covered by the warranty provided by Micromax and the mobile started giving problem during the warranty period and op no.2 duly informed the complainant that same would be replaced by a new mobile.But they cannot replace the same because all the accessories were in good and working condition.Complainant, however, insisted for replacement of the mobile along with the accessories but the op no.2 declined to replace the accessories as the accessories were in good and perfect working condition and complainant probably did not approach the op no. 2 for which he did not get a new replace mobile.So, there was no negligence and deficiency on the part of the op no.1.But there is no any negligence i.e. manufacturer and service centre.So, in the above circumstances, the complaint should be dismissed and the entire allegation against op no.1 is completely baseless and without any foundation.

Fact remains that for the purpose of proper circulation of the notice of this complaint, notice was published in the daily Statesman dated 10.04.2015 Kolkata Edition Saturday and by that notice of the ops were informed about the initiation of the proceeding, but other ops that is service centre and Micromax mobile companies did not turn and they are op nos. 2, 3 & 4 and accordingly this complaint was heard finally for decision.

                                                  Decision with reasons

On an in depth study of the complaint and written version and also considering the documents and the admission of the seller of the Micromax i.e. op no.1 it is undisputed fact that complainant purchased the same from op no.1, but the said set manufactured by Micromax company.Op has admitted that there was some problem in the mobile for which complainant deposited the mobile to the op no.1 and op no.1 deposited the same to op no.2 the authorized service centre and manufacturer as mobile was covered by warranty provided by Micromax company and mobile has started problem during the warranty period.

So it is clear that there was manufacturing defect that admitted by the seller.It is also admitted by the seller that op no.2 agreed to replace a new mobile set without accessories.But it is the case of the seller op no.1 that accessories were in good conditions for which op no.2 did not agree to replace the accessories when complainant refused to accept it.In this context we want to say that if mobile is replaced, then the new accessories must be replaced and that is the mode of replacement because different type of mobile sets are enacted along with accessories in one cover.When in respect of purchase at the time it is proved that it is a manufacturing defect and company and their service centres are willing to replace the same, then the entire new set along with its new accessories shall be replaced.Part replacement cannot be made because along with new set, new accessories are required and that is the provision of selling the articles or replacement request and considering the expression of the complainant, we find that complainant rightly placed such his grievance to the op nos. 1 & 2 for replacement of new set along with new accessories after taking back old accessories.

But truth is that defective set is still now in the custody of the op no.2 and that is defective, it is confirmed that is manufacturing defect.So, in the above circumstances, we find that this complainant has been suffered much since purchase of the mobile on 24.05.2014 and in fact since 25.06.2014 the said defective set is in the custody of the op no.2, the service centre of Micromax.But they have not shown their corporate business responsibility to replace the new set along with new accessories and they have dragged out the matter and harassed the complainant.

Fact remains that the mobile was customarily noted to the complainant for his day to day and daily earning.But for the laches and negligent and deficient manner of service and neglected attitude, complainant is being harassed since 25.06.2014 and till today.Such sort of business of the Micromax Company should be stopped immediately.

Fact remains that in this Forum most of the complainants brought allegations against Micromax and in most of the cases Micromax is either replaced the mobile or return the entire amount along with interest and compensation and in the present case, it is proved by the op no.2 the Service Centre that the set is defective from its inception that is from the date of purchase by the complainant.But no part of the grievance of the complainant was resolved by the op nos. 2 to 4 and that is no doubt the negligent and deficient manner of service and at the same time it is a deceitful manner of trade on the part of op nos. 2 to 4 and in view of the above circumstances, we are convinced to hold that the allegation is made by the complainant against op nos. 2 to 4 is well proved.About op no.1 the seller took all such step, gave all supports but he is not the manufacturer for which we are passing such final order against this complaint.

Hence, it is

                                                        ORDERED

That the complaint be and the same is allowed on contest without any cost against op no.1 and same is allowed exparte against op nos. 2 to 4 with cost of Rs. 5,000/-.

Op nos. 2 to 4 are hereby directed to handover a new Micromax Mobile set as per his choice in place of the defective one along with new accessories within one month from the date of this order along with further warranty for one year and if op nos. 2 to 4 failed to hand over it within one month, in that case ops shall have to refund the entire purchased amount of Rs. 10,050/- and also compensation of Rs. 5,000/- for causing harassment, mental pain and also for showing negligent and deficient manner of service and deceitful manner of trade to the complainant.Accordingly op nos. 2 to 4 are directed to satisfy the decree within one month from the date of this order failing which op nos. 2 to 4 shall have to pay penal interest at the rate Rs. 200/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.

Even if it is found that ops are reluctant to comply the order, in that case, penal proceeding u/s 25/27 of C.P. Act shall be started for which further penalty and fine shall be imposed against them.