Date of Filing: 02-06-2016 Date of Final Order: 23-06-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of CP Act, 1986 filed by Smt. Sampa Sarkar against Roy Plaza and Nokia Care praying for direction to the O.Ps to return of Rs.2,650/- along with interest, compensation of Rs.10,000/- for causing mental pain & agony, Rs.5,000/- for deficiency of service and Rs.7,000/- as litigation cost.
The case of the Complainant in short is that she purchased Nokia mobile (Model No.220, IMEI No.357783066270968, 357783066270976) at a price of Rs.2,650/- from the shop of the O.P. No.1 on 30/06/2015 and to that effect a Tax Invoice being No.1218 dated 30/06/2016 was issued in her favour. After few days of the said purchase there were some problems in the said mobile set. The problem in the said mobile set was that the mobile was not fully charged even after a long time charging. The Complainant went to the shop of the O.P. No.1 and disclosed the said problem. The O.P. No.1 kept the said mobile set for four days without issuing any receipt and on 4th date the O.P No.1 returned the said set with an opinion that there was no fault and asked the Complainant to use the set. The Complainant returned home with the said mobile set and started using the same and the problem arose again after using the said set after 1 or 2 days. Thereafter, the Complainant being frustrated went to the shop of the O.P. No.1 again and appraised him about the problem and then the O.P. No.1 referred him to the O.P. No.2 i.e. Nokia Care. On 03/12/2015 the Complainant went to the O.P. No.2 and the O.P. No.2 prepared a job sheet after receiving the alleged mobile set and on 02/03/2016 the O.P. no.2 returned the mobile set to the Complainant and after seven days the problem started once again. Then the Complainant went to the O.P. No.1 again and disclosed the problem but he could give satisfactory explanation and advised to go to the O.P. No.2 and on 12/03/2016 the Complainant further went to the O.P. No.2 who received the mobile set by issuing a job sheet.
It is the further case of the Complainant that after 10 days, the O.P. No.2 returned the mobile set to the Complainant alleging that the said set was no repairable. Thereafter, the husband of the Complainant went to the O.P. No.1 and requested the owner to take back the set and to return the cost of the mobile set and then the O.P. No.1 became very much angry with the Complainant’s husband and pushed him out from the said shop and threatened him not to visit his shop again. The acts of the O.P. No.1 & 2 caused mental pain & agony to the Complainant and also suffered financial loss and harassment. The O.Ps adopted illegal trade practice towards the Complainant. As such the Complainant has filed this case for proper relief, which is specifically mentioned in the complaint petition.
Summons upon the O.P. No.2 was duly sent but the O.P. No.2 refused to receive the summons. Refused amounts to service. The O.P. No.2 did not turn up to contest this case and hence the case was heard Ex-parte against the O.P. No.2.
The O.P. No.1 in order to contest this case has filed W/V denying all material allegations, contending inter-alia that the instant petition is not maintainable, the case is bad for mis-joinder and non-joinder of necessary parties and the Complainant has filed this case for illegal gain.
It is the specific case of the O.P. No.1 that the Complainant purchased the mobile set on 30/06/2015 and there was no problem within six months and after six months the Complainant for illegal gain brought the handset on 31/12/2015 with complaining battery problem and then he advised him to take the mobile set to the authorized service centre of the company i.e. the O.P. No.2 and thereafter, the Complainant never contacted with the O.P. No.1. The Complainant has filed this case in a malafide intention in order to harass him. On the basis of the aforesaid facts the O.P. No.1 prays for dismissal of the case with costs.
In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.
POINTS FOR CONSIDERATION
1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1.
It is evident from the evidence on record that the Complainant purchased one Nokia mobile set from the O.P. No.1 and the O.P. No.2 is the service centre of Nokia.
Consumer means any person who buys any goods for consideration which has been paid of promised to pay or partly paid or partly promised or under any system of deferred payment and includes any user of goods other than the person who buys the goods for consideration, when such use is made with the approval of such person.
In this case, the Complainant purchased the mobile set from the O.P. No.1 for her own use and the O.P. No.1 is the seller. Therefore, the Complainant is a consumer. Thus this point is decided in favour of the Complainant.
Point No.2.
The Complainant and the O.Ps are the resident of Cooch Behar and the shop of the O.P. No.1 & 2 are situated within Cooch Behar town. The claim of the Complainant as stated in the complaint petition is less than the statutory limit. Hence, we hold that this Forum has the territorial as well as pecuniary jurisdiction to try this case. This point is also decided in favour of the Complainant.
Point No.3 & 4.
Both the points are taken up together for consideration of discussion as well as the points are related with each other.
Admitted fact is that the Complainant purchased a Nokia mobile from the O.P. No.1 at a consideration of Rs.2,650/-. It is evident from the evidence on record that while she was using the said mobile set, some problems arisen and then she went to the shop of the O.P. No.1 with the said Nokia mobile set and disclosed that the mobile set was not fully charged even after long time charging. The O.P. No.1 received the said mobile without issuing any receipt and later returned the mobile with an opinion that there was no defect. After using the said mobile for 1 or 2 days, battery complain further arose and then the O.P. No.1 directed the Complainant to go to the O.P. No.2 (Authorised Service Centre).
It is further evident from the evidence on record that the O.P. No.2 received the mobile set after issuing a job sheet and after two months, the O.P. No.2 returned the mobile set but the problem further arose and the O.P. No.2 disclosed that the said mobile set could not be repaired.
It is further evident from the evidence on record that the Complainant lastly went to the O.P. No.1 and requested the O.P. No.1 to take back the mobile set and to return the money and then the O.P. No.1 pushed away the husband of the Complainant.
Admitted fact is that the Complainant purchased a mobile set (Nokia) at a price of Rs.2,650/- and it was found defective within the warranty period. It is evident from the documents that the Complainant was given one year warranty of the product i.e. the mobile set (Nokia). But we found that neither the O.P. No.1 (Seller) nor the O.P. No.2 (Service Centre) full filled their said promise. It amounts to deficiency of service from the part of the O.P. No.1 & 2. It is also amounts to an unfair trade practice.
One year warranty was given to the Complainant for her Nokia Mobile and it was found defective within one year warranty period. It is/was the duty of the O.P. No.1 & 2 to repair the defect and if the same is not repairable then she should be compensated by another set of same type or repay the value, which she paid during the time of purchase of the Nokia Mobile set. The conducts of the O.Ps are negligent, which amounts to deficiency of service and as such the Complainant is entitled to get decree as prayed for.
Both the points are decided in favour of the Complainant.
Hence,
Ordered,
That the present complaint be and the same is allowed on contest against the O.P. No.1 and Ex-parte against the O.P. No.2 with cost of Rs.5,000/-.
The O.Ps are hereby directed to pay the value of the Nokia Mobile set amounting to Rs.2,650/-, Rs.3,000/- as compensation and Rs.2,000/- for deficiency of service to the Complainant. The O.Ps are liable to pay the aforesaid amount jointly and/or severally.
The O.Ps are hereby directed to pay the aforesaid sum within 30 days from this day, failing which the O.Ps shall have to pay Rs.50/- per day for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
