Complainant Ram Pal has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to provide new Mobile Phone to him in place of defective Mobile Phone in question or to get repair the phone in question and handover the same after removing all the defects occurred in the same. Opposite parties be further directed to pay Rs.50,000/- as compensation for physical harassment and mental agony and litigation expenses to him, in the interest of justice.
2. The case of the complainant in brief is that he has purchased one Nokia Mobile of 220 White Model from the opposite party no.1 for Rs.2700/- vide bill bearing No.464 dated 15.11.2014 and its warranty is given one year from the date of its purchase and if the defect is manufacturing one, then the set in question would be replaced and in case of minor defect, the same would be removed by the opposite party no.2 who is Authorized Service Centre of Nokia Company. It was further pleaded that unfortunately in the month of April 2015, he noticed that the set in question started heating and it became totally out of order, as it shut downs itself and as such he has approached the opposite party no.1 who sent him to the Authorized centre of the opposite party no.2 and they kept his mobile phone and called him to come after about a week. When he approached the opposite party no.2 they demanded Rs.500/- from him as repair charges. He paid the same since he was facing difficulties without phone. It was next pleaded that in the month of May 2015 i.e. after about 10 days of repair, the mobile phone again started heating and it was just like blasting mobile. Again he approached the opposite party no.2 and they kept the mobile phone and asked him to come after 10 days. After 10 days when he visited the opposite party no.2 he demanded Rs.1300/- more from him. He requested the opposite party no.2 the mobile phone is within warranty, but he did not oblige his request. Due to the illegal act and conduct of the opposite parties he has suffered great mental agony as well as physical harassment from the hands of the opposite parties. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply admitting therein that complainant has purchased one Nokia Mobile of 220 vide bill No.464 dated 15.11.2014. He approached the opposite party in the month of April 2015 with complaint of some defects in the mobile phone in question and opposite party directed the complainant to approach the opposite party no.2 for the needful as the opposite party no.2 is authorized Care Centre of the company. It was further submitted that there is no illegality in the act and conduct on the part of opposite party. There is no deficiency in service on the part of the opposite party. Opposite party lastly prayed that the complaint may be dismissed with costs.
4. Opposite party no.2 appeared through its counsel and filed its written reply taking the preliminary objections that complaint of the complainant is not maintainable in the present forum and Rohit Optical and Telecom Kala Kander Chowk, Gurdaspur is not the authorized dealer of Nokia Company, therefore, the complaint is liable to be dismissed on this score also. On merits, it was submitted that Nokia Company nor Nokia Care Centre do not provide warranty on purchase of mobile handset from Gray Market and moreover, this handset is not purchased from the authorized dealer of Nokia Company. However, the mobile in question is received by the opposite party in water damaged condition. Moreover, Nokia Company is not liable for water damage, physical damage, burn damage etc and therefore the water damaged guarantee is lapsed. We checked the mobile handset and water drops inside the handset and an estimate of Rs.1300/- was given and the complainant approved the estimate and repair to the handset was done. The complainant has signed on the job card regarding delivery of handset, but after signing the job card, he refuse to pay the repair amount of Rs.1300/- of the handset and threatened that he will get the mobile through legal process by filing complaint in the Consumer Forum, therefore, there is no deficiency in service on the part of the opposite party as the complainant has not paid the amount of Rs.1300/- and the complaint is liable to be dismissed on this score. There is no cause of action arose against the opposite party no.2 as the warranty has been elapsed on account of water damaged condition. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
5. Complainant tendered into evidence his own affidavit Ex.C1 and of Sh.Randeep Kumar son of Sh.Ruldu Ram Ex.C3 alongwith other document Ex.C2 and closed the evidence.
6. Sh.Rahul Uppal, Proprietor of opposite party no.2 tendered into evidence his own affidavit Ex.OP2/1 alongwith other documents Ex.OP2/2 to Ex.OP2/4 and closed the evidence.
7. No one appeared on behalf of opposite party no.1 nor evidence has been produced on its behalf. Therefore, it was proceeded against exparte vide order dated 5.1.2016.
8. We have examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while at the same time also taking the due judicial-notice of the OP1 vender’s intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service and partial attendance. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee litigant has no defense to prosecute; still, we have provided a judicious opportunity to the OP1 vendor by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.
9. We find that the present complaint has arisen as a result of refusal of ‘warranty’ cover/subsequent ‘free’ repair by the OP2 Nokia Service Centre to the complainant’s ‘defective’ (allegedly water-soaked) mobile stating that the OP1 vender has not been the Nokia’s authorized dealer and as such the complainant was required to pay an estimated repairs-costs of Rs.1,300/- and instead the hand-set was also retained. It has also been alleged that the hand-set has been a ‘grey’ market produce and not a ‘genuine’ product. The OP1 vender has simply filed the routine written statement admitting ‘sale’ and ‘dysfunction/disorder’ of the mobile in question and thereafter put up ‘ex-parte’ absentee participation without even rebutting the OP2 service centre’s allegations etc. We, further find that the complainant could not utilize/enjoy the benefits of his duly purchased ‘mobile’ from the OP1 vender who had assured him of the manufacturers’ warranty/repair services etc. Thus, the consumer rights of the complainant have indeed been infringed at the hands of the OP1 vendor who has allegedly sold the non-genuine ‘mobile-set’ sans ‘warranty’ exhibiting ‘unfair trade practice’ coupled with ‘deficiency in service’ and that lines him for an adverse ‘award’ under the Act.
10. In the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite party No.1 Vendor to pay-back/refund the billed amount of Rs.2,700/- i.e., the cost of the mobile-set besides to pay him Rs.1,000/- as cost and compensation within a period of 30 days from the receipt of copy of orders failing which proceedings u/s 27 CPA shall be initiated against OP No.1.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
February,03 2016 Member
*MK*
