BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint no.241/16.
Date of instt.: 04.08.2016.
Date of Decision: 07.03.2017.
Rakesh Kumar S/o Sh. Ved Parkash, R/o Amargarh Colony, Gali No.11, Kaithal, Tehsil & Distt. Kaithal, Mobile No.9896300593.
……….Complainant.
Versus
- Prop. of Mobile World Dealers of all types Mobile Phone, SBI Road, near Park Kaithal, Distt. Kaithal (Haryana).
- The Care Manager, Mugal Karnal Shop No.410, Karnal, Distt. Karnal, Mobile No.8930538141.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Jagmal Singh, President.
Sh. Rajbir Singh, Member.
Smt. Harisha Mehta, Member.
Present : Complainant in person.
Op No.1 exparte.
Sh. A.K.Khurania, Advocate for the Op No.2.
ORDER
(JAGMAL SINGH, PRESIDENT).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile set of HTC 620 G bearing IMEI No.354790076366412 for a sum of Rs.13,500/- from Op No.1 vide invoice No.2114 dt. 21.11.2015. It is alleged that after some time, the complainant noticed that there was technical defect in the said mobile set and the same was not working properly. It is further alleged that the complainant deposited the said mobile set with the Op No.1, who sent the same to Op No.2 on 13.07.2016 but the Ops did not repair the said mobile set and kept the same with them. It is further alleged that the complainant requested the Ops several times to repair or replace the said mobile set but the Ops did not do so. This way, the Ops are deficient in service. Hence, this complaint is filed.
2. Upon notice, the opposite parties appeared before this forum. Op No.1 initially appeared but did not appear on 03.11.2016, so, Op No.1 was proceeded against exparte vide order dt. 03.11.2016. Op No.2 filed reply raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complaint is bad on account of mis-joinder and non-joinder of necessary parties; that the Op No.1 is the dealer of HTC mobiles and Op No.2 is the authorized service-provider, whereas the complainant has not made party HTC India Pvt. Ltd., manufacturer of the HTC mobile, the product in question; that the Op No.2 has nothing to do with the present complaint as the Op No.2 is not the manufacturer of the said mobile set and Op No.2 is not responsible or liable to replace the product in question. There is no deficiency in service on the part of answering Ops. On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents Ex.C1 and Mark-C1 and closed evidence on 06.12.2016. On the other hand, the Op No.2 tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to Ex.R7 and closed evidence on 06.02.2017.
4. We have heard both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. The complainant reiterated all the points mentioned in the complaint. He argued that the mobile set in question purchased by the complainant on 21.11.2015 became defective within the warranty period with the problem of charging and was not working properly. He further argued that he deposited the said mobile set with the Op No.2 vide job-sheet dt. 13.07.2016, Mark-C1 but the Op No.2 did not repair the said mobile set and kept the same with him. On the other hand, ld. Counsel for the Op No.2 vehemently argued that the present complaint is pre-mature because the complainant has not made party HTC India Pvt. Ltd., manufacturer of the HTC mobile, the product in question. He further argued that the Op No.2 has nothing to do with the present complaint as the Op No.2 is not the manufacturer of the said mobile set and Op No.2 is not responsible or liable to replace the product in question. He further argued that inspite of the objection taken in preliminary objections of the reply to the complaint by Op No.2, the complainant did not implead the manufacturer as party, so, the present complaint is bad for non-joinder of necessary parties and liable to be dismissed on this score alone. He further argued that the mobile set in question was deposited with Op No.2 on 08.07.2016 for charging problem and the mobile handset was repaired to the satisfaction of complainant by updating the software and delivered the handset to the complainant on the same day. He further argued that the mobile set in question was again submitted by the complainant on 13.07.2016 with Op No.2 and Sub-board was replaced free of cost and messages were sent to the complainant but the complainant has not collected the same. He further argued that the mobile set of complainant is still lying at the service-centre and is ready for use having no defect but the complainant is adamant for replacing the mobile set in question. He further argued that the mobile set in question can only be replaced by the manufacturer and Op No.2 has nothing to do with the replacement.
6. From the pleadings and evidence of the parties, it is clear that the mobile set in question was purchased by the complainant on 21.11.2015 from the Op No.1. The said mobile set became defective on 08.07.2016 with the charging problem and the Op No.1 has repaired the same by updating the software and returned to the complainant on the same day. The mobile set in question again became defective on 13.07.2016 and the same was submitted by the complainant with the Op No.2 as admitted by the Op No.2 in his reply and this fact is also clear from the service report, Mark-C1. From perusal of complaint, it is clear that the complainant has made the parties as Op No.1, the dealer and Op No.2, the service-centre only but the manufacturer has not been impleaded as party by the complainant. The Op No.2 has also taken the specific stand regarding the non-impleading of manufacturer in the reply but despite that the complainant has not impleaded the manufacturer as party. The Op No.2 has admitted in his reply that the mobile set in question was deposited with him on 13.07.2016 by the complainant and the same was repaired by him and still lying with him but the complainant was adamant for replacement, so, the same was not taken by the complainant inspite of messages. We found force in the contention of Op No.2 that the mobile set in question can only be replaced by the manufacturer but the manufacturer has not been impleaded as party by the complainant in his complaint inspite of the objection taken by the Op No.2 in his reply. The contention of Op No.2 has also force that the Op No.2 can only repair the mobile set in question being the service-centre and the same has been repaired by him free of cost but the same has not been collected by the complainant because the complainant wants its replacement. This fact is found support from the complaint that the complainant has prayed for replacement only. In view of above facts and circumstances, we are of the considered opinion that the complainant has not impleaded the manufacturer, who was the necessary party for the replacement of mobile set in question. So, the complaint is bad for non-joinder of necessary parties. The complainant has failed to prove any deficiency on the part of the Ops, who were impleaded as parties.
7. Thus, as a sequel of above discussion, we found no merit in the complaint and the same is hereby dismissed. However, it is made clear that the complainant is at liberty to collect his repaired mobile set from the Op No.2. No order as to costs. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.07.03.2017.
(Jagmal Singh),
President.
(Harisha Mehta), (Rajbir Singh),
Member. Member.
