West Bengal

Birbhum

CC/24/2016

Md Jahiruddin, S/O Lt Hilaluddin - Complainant(s)

Versus

Prop. New Sahityaayan - Opp.Party(s)

Nurul Alam

22 May 2018

ORDER

Shri Biswa Nath Konar,  President.

            The case of the complainant Md. Jahiruddin, in brief, is that he is practicing lawyer and on 21.01.2016 he purchased a Micromax Mobile being model No X605 at a price of Rs. 1100/- and the O.P Proprietor of New Sahityayan, Suri, Birbhum has issued cash memo in this regard.

            But soon after purchase it was found that the mobile in question has not been functioning properly because it cannot be set on vibration mode, which is necessary as the complainant is a lawyer by profession and ringtone is not allowed within the court room.

            It is the further case of the complainant that at the time of purchase of mobile in question the O.P did not disclose him that the vibration mode was not available in the said particular set.

            It is the further case of the complainant that on several occasion he approached the O.P to either repair or replace his mobile set but no consequence.

            Lastly he served a legal notice upon the O.P but they did not pay any heed.

Hence, this case for directing the O.P to replace or repair the mobile set in question and to pay Rs. 2000/- for compensation for harassment and litigation cost.

            The O.P New Sahityayan, Suri Birbhum has appeared in this case and filed written version. But thereafter they are backed out from the case and the case was heard ex parte against them.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Md. Jahiruddin has examined himself as P.W.1 and he also filed some documents.

Heard argument of the Ld. Advocate/Agent of the complainant.

Point No.1:: Evidently the complainant purchased a Micromax Mobile being model No X605 at a price of Rs. 1100/- from the O.P Proprietor of New Sahityayan, Suri, Birbhum.

So, the complainant is consumer u/s 2(1)(d)(ii) of C.P. Act.

Point No.2:: O.P New Sahityayan has showroom at Birbhum within jurisdiction of this Forum.

The total valuation of the case is Rs. 3100/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-. So, this Forum has territorial and pecuniary jurisdiction.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant Md. Jahiruddin in his complaint and evidence stated that on 21.01.2016 he purchased a Micromax Mobile being model No X605 at a price of Rs. 1100/- and the O.P Proprietor of New Sahityayan, Suri, Birbhum has issued cash memo in this regard.

            Original cash memo dated 21.01.16 filed by the complainant issued by the O.P New Sahityayan shows that the complainant purchased Micromax mobile set being model No. X605 at a price of Rs. 1100/- from the O.P.

            Original warranty card shows that warranty was given to the complainant in respect of his mobile set by the O.Ps.

            The complainant in his evidence further stated that soon after purchase it was found that the mobile in question has not been functioning properly because it cannot be set on vibration mode, which is necessary as the complainant is a lawyer by profession and ringtone is not allowed within the court room.

The complainant further stated that at the time of purchase of mobile in question the O.P did not disclose him that the vibration mode was not available in the said particular set and the complainant, on several occasion, approached the O.P to either repair or replace his mobile set but no consequence.

            In the present case the O.P has made appearance on 08.04.16 and filed written version on 10.06.16. On 18.01.17 due to non-appearance of the O.P the case was posted for ex parte hearing. On 30.03.17 ex parte order was vacated on prayer of the O.P subjected to payment of cost of Rs. 100/-. On 20.09.17 the O.P took adjournment on the ground of settlement. 12.10.17 and 15.11.17 have been fixed for compromise. On 23.11.17 settlement was failed and 16.01.18 was fixed for filing evidence by the complainant. Since 27.03.18 the O.P has not been taking any steps and the case was heard ex parte.

            So, it is clear that the O.P by taking one after another adjournment drag the case on the ground of settlement. But lastly backed out from the case and it may be said the O.P is not diligent in conducting the case and practically reluctant with the fate of the case.

            We find that in his W.V the O.P  raised a plea that he is only retailer and merely sold the mobile in question and he has no power or authority to change of any part of it and the complainant should contract with service centre.

            But being Agent/Retailer of the Micromax Co. he cannot shift everything on the shoulder of the manufacturer Micromax Co.

            More so, we find from the original warranty card that every entry regarding particulars of the mobile set, date etc. are kept blank and said warranty card also does not provide any signature and seal of the said O.P, which also amounts to illegal trade practice and deficiency in service.

            We find that the complainant by filing affidavit claim that the mobile set in question was defective from very beginning and vibration mode was not available in the said set but the O.P did not disclose him that vibration mode was not available there.

            In the present case we have already stated that the O.P has not contested the case and O.P also has not filed any evidence denying allegation made by the complainant and also has not cross-examined the complainant.

In view of the ruling reported in IV2006CPJ 2013(NC) wherein a complaint case the complainant filed an affidavit by way of evidence but the O.Ps neither filed any evidence by way of affidavit nor cross examined the deponent. Hon’ble National Commission pleased to hold that allegation of the complainant remained uncontroverted and in absence of any counter affidavit case of the complainant stands prove.

            Considering overall matter into consideration and materials on record we think the complainant has been able to prove his case by his unchallenged testimony that the mobile set in question was defective from very beginning and without having vibration mode.

            We think in this juncture if the O.P is directed to replace or repair the said set in question the matter may not be ended and in view of the ruling reported in 2009CTJ 180(CP)(SCDRC) Delhi, in a dispute of defective goods, cost of such goods be refunded to end the dispute, replacement of goods is not a solution as such goods may not be upto the satisfaction of the consumer.

            Accordingly we think the O.P is to be directed to refund back Rs. 1100/- to the complainant as price of the mobile set.

            Rs. 500/- is awarded as compensation as token for causing mental pain and agony to the complainant.

            Thus both these points are decided in favour of the complainant.

Accordingly the case is allowed in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 24/2016 be and the same is allowed on ex parte against O.P  with cost  of Rs. 500/-.

The O.P Propriter New Sahityayan is directed to pay Rs. 1100/- as price of defective mobile set in question on receiving the defective set in question and he is also directed to pay Rs. 500/- as token compensation. Complainant is not entitled to get any other compensation.

 All such payments shall be made within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and procedure.

Copy of this order be supplied to the parties each free of cost.