Complainant Rakesh Kumar through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to replace the defective mobile of the complainant and the penalty to the tune of Rs.2,00,000/- may please be imposed upon them on account of mental agony and pain and towards the costs of proceedings and deficiency of service.
2. The case of the complainant in brief is that complainant had purchased a mobile phone make ‘Intex IQ’ from the opposite party no.2 vide cash bill no.2547 dated 04.04.2015 who assured him that the mobile set will work satisfactorily and there will be no problem and in case of any problem during the warranty of one year, the same will be replaced/repaired without any costs. Upon the assurance given by the opposite party no.2 complainant had paid cash amount of Rs.4750/- to them. It was pleaded that in the month of Sept. the mobile in question stopped working and complainant approached the opposite party no.2 who directed him to go to opposite party no.1, who was running an authorized service center for the Intex Company. It was pleaded that on 18.7.2015 complainant handed over the said mobile to opposite party no.1 for its replacement or repair which was received by opposite party no.1 vide job card no.509052023012T001 and the same was returned by opposite party no.1 by saying that the same had been repaired. It was further pleaded that after two months the mobile in question again stopped recharging and the complainant again went to opposite party no.1 who again received the said mobile against the job card no.509052023012T001 dated 05.09.2015 and again opposite party no.2 assured that the same had been repaired with assurance that there will not be any problem in future. It was pleaded that complainant was surprised and astonished when his mobile again stopped working and the same was repaired vide job card dated 11.09.2015, 509112023004T001 on 30.09.2015, job card no. 509302023014T001 and dated 19.11.2015 job card no.192023003T001 but the said mobile was never worked and complainant came to know that opposite party no.2 had claimed and received parts for the repair of the mobile from the company but he dishonestly never replaced the same and had used those parts for some other mobiles. It was also pleaded that complainant again approached the opposite party no.2 and requested him to do the needful but the behavior of the opposite party no.2 was very bad and rude and he asked the complainant to sit in his service center for hours but he did not do the necessary repair as per the conditions of the warranty. It was next pleaded that complainant approached the officials of the opposite party no.3 on the mobile no.9988880927, 8054995304 who informed him that they are ready to replace the set if the same was sent back by opposite party no.2 and upon this complainant went to opposite party no.2 again and requested him to replace his mobile but the opposite party no.2 finally refused flatly by saying that complainant can do what he wants and the defective mobile would not be replaced or repaired and due to this act of the opposite party no.2 complainant had suffered financial loss and mental agony. It was pleaded that complainant also got a legal notice served upon the opposite parties through his counsel but they did not bother to reply meaning thereby that they admitted the contents of the notice. It was further pleaded that opposite parties had failed to replace or repair the mobile as per the terms and conditions of warranty and this amounts to deficiency of service on the part of the opposite parties and they are liable to pay compensation to the complainant. It was also pleaded that complainant had suffered irreparable loss and injury along with mental agony due to deficiency of service on the part of the opposite parties, hence this complaint.
- Notice of the complaint was served upon the opposite parties but opposite parties no.1 and 2 had appeared through their counsel and filed the written reply stating therein that it was admitted that complainant had purchased a mobile from the opposite party no.2 which was manufactured by opposite party no.3 but it was denied that opposite party no.2 was asked the complainant for its replacement. Opposite party no.2 had given one year warranty meaning thereby that the defect if any found in the mobile will be removed by its repair. It was stated that complainant had brought the mobile on 05.09.2015 which was duly repaired by opposite party no.1 and thereafter complainant again brought the mobile with the opposite party no.2 which was again sent to the service centre i.e. opposite party no.1 on 19.11.2015 and the same was repaired to the entire satisfaction of the complainant and complainant also issued certificate on 07.12.2015 and after it complainant never came or contacted with opposite parties. It was stated that there was no agreement for replacement of the mobile except to remove its defect which was removed to the satisfaction of the complainant. It was further stated that mobile set was received by the opposite party on 19.11.2015 and the same was handed over to the complainant on 07.12.2015 but it was denied that opposite party returned said mobile after two months. It was stated that complainant handed over the mobile for its repair on 05.09.2015 which was returned to him on the same day. It was denied that said mobile never worked after 19.11.2015 as complainant himself issued the satisfactory certificate on 07.12.2015 to the opposite party. It was further denied that opposite party no.2 had claimed or received any parts for repair of the mobile from the company i.e. opposite party no.3 and there was no occasion to receive any parts when there was no manufacturing defect in the mobile as mobile was functioning regularly. It was also stated that complainant had filed the present complaint with ulterior and malafide motive only to get a new mobile for which he was not entitled as opposite parties are authorized dealer and service center of the opposite party no.3. It was also denied that complainant ever contacted with the opposite party after 07.12.2015 as his mobile remained in order and was functioning properly. It was stated that complainant never brought the mobile after 07.12.2015 for its repair with opposite party. It was stated that opposite parties had no knowledge for the assurance of the opposite party no.3 to the complainant for replacement of his mobile. It was also stated that opposite parties had no objection if the opposite party no.3 had replaced the mobile as per the allegations made by the complainant. It was denied that complainant was contacted to the opposite party no.2 for the replacement of the mobile as he has no right to replace the same without the instructions of the opposite party no.3. It was next stated that complainant has utilized the mobile during the warranty period and he had not suffered any loss nor there was any negligence on the part of the opposite party and there was also no deficiency in service on their part. It was denied that complainant was served a legal notice upon the opposite parties as they had not received any notice from the complainant if any such notice annexed with the complaint the same is forged and fabricated document only to create false evidence as no postal receipts etc. had been placed on the file. It was stated that each and every complaints attended by the opposite parties as and when complainant approached to them and they removed the defect in the mobile to his entire satisfaction and complainant also issued satisfactorily certificate in this regard. It was stated that complainant was not entitled for any compensation as he had filed the present complainant only to illegally grab the amount fro the opposite parties when there was no deficiency in service on their part. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with costs.
4. Notice issued to the opposite party no.3 was not received back and by taking the presumption it was proceeded against exparte vide order dated 07.04.2016.
5. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C4 and closed the evidence on behalf of complainant.
6. Counsel for the opposite parties no.1 and 2 had tendered into evidence affidavit of Mohit Garg Sole Prop. Ex.OP-1, affidavit of Rashpal Singh Bittu Ex.OP-2 along with document Ex.OP-3 to Ex.OP-6 and closed the evidence on behalf of opposite parties no.1 and 2.
7. We have examined all the documents/evidence produced on record and have also duly considered and perused the arguments duly put forth by the learned counsels for both the sides while adjudicating the present complaint.
8. It is admitted fact that the complainant has purchased a mobile phone from the opposite party no.2 vide cash bill no.2547 dated 04.04.2015. It is also admitted fact that the mobile phone has been handed over to service centre on 05.09.2015 and 19.11.2015. The complainant also stated that the mobile has been given for repair on 18.07.2015 vide job card No.509052023012T001, 05.09.2015 vide job card No. 509052023012T001, 11.09.2015 job card No.509112023004T001, 30.09.2015 job card No.509302023014T001, 19.11.2015 job card No.192023003T001. But the said mobile did not work and has not been repaired to the satisfaction of the complainant. It is further submitted by the complainant that he approached the officials of the opposite party no.3 on the mobile no.9988880927, 8054995304 who informed the complainant that they are ready to replace the set in case the same is sent back by opposite party no.2. The complainant went to the opposite party no.2 again and requested him to get the mobile replaced but the opposite party no.2 flatly refused by saying that the complainant can do what he wants. But it is pertinent to mention over here that opposite party no.3 M/s. Intex Mobile Technologies (India) Limited, R/o D-18/2, Okhla Industrial Area, Phase-II, New Delhi has not come present to rebut the claim of the complainant and has been proceeded exparte. So adverse inference can be drawn against the opposite party no.3. Moreover, complainant is a consumer of opposite parties and the consumer should be satisfied whereas the complainant is suffering and there is deficiency in service on the part of the opposite parties.
- In the light of the all above, we partly allow the complaint and order the opposite party no.3 to replace the said defective mobile of the complainant with the new mobile of make ‘Intex IQ’ or pay Rs.4750/-. The opposite party no.2 is also directed to help the complainant in this regard. The opposite party no.3 is directed to replace the mobile or pay Rs.4750/- within 30 days from the receipt of the copy of this order besides Rs.3000/- cost of litigation be paid by the opposite party no.3. If the opposite party no.3 fails to comply with the orders within one month from the receipt of the copy of order then the complainant is further entitled for 9% interest on the ordered amount from the date of order till its realization.
- Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
AUG. 04, 2016 Member.
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