This is an application u/s.12 of the C.P. Act, 1986. Complainant by filing this complaint has submitted that he purchased one Nokia Lumia-720 from the OP on 05-10-2013 and on the very date he faced some power issue problem with the phone and his phone was automatically switched off and 07-10-2013 he went to the OP’s shop and told them that there might be some problem in the phone so requested them to check the phone and replace it but they refused to replace it and after pressing the power button of his phone same was suddenly switched on. Thereafter, on 10-10-2013 again he faced same problem and on 15-10-2013 he went to Nokia Care (Sector-V, Salt Lake), but they informed that they were unable to solve the problem but to keep the phone for sending that to Delhi, Head Service Centre. On 24-10-2013 Nokia Care called the complainant and told that the phone was tampered and Nokia was also closed the warranty. At the time of purchase the above mentioned shop was trying to cheat him by supplying a tampered phone for Rs.18,050/-. So, he demanded for replacement of the phone with brand new one or full money back with compensation for deficient manner of selling and defective sale of defective article and for other costs. On the other hand, OP by filing written statement has submitted no doubt complainant purchased the same from the OP and OP paid a valid receipts which totals to Rs.17,050/- and purchased the same on 05-10-2013. It is admitted by the OP, Nokia closed the warranty of the said phone as Nokia Care Centre has reported that it was tampered one and OP has submitted that OP had purchased the said mobile phone from Silicon Telepoint Pvt. Ltd. but they also denied to take any liability. In the matter OP being aggrieved by the Silicon Telepoint lodged a case against Silicon Telepoint and another and it is further submitted that as because warranty was given by the Nokia Company then Nokia is liable to discharge its liability but no way OP is liable to give any warranty. Fact remains Nokia Lumia Phone is manufactured by Nokia Siemens Company and not by the OP and any defect in the Mobile Phone set is to be corrected and rectified by the process to be done by Nokia Company and not by the OP and, Nokia-Siemens Company as the effective party in this application had to be made a party for proper adjudication of the case but complainant has not made the company as party. At the same time complainant has failed to show that Nokia Lumia phone was sold with warranty given by the OP because warranty card also states that Nokia Company undertakes 1 year warranty over the phone and if the phone is mishandled as tampered then the warranty expires and further it is submitted that other than the Nokia Company the circuit of the mobile was tampered by other person and no doubt Nokia Company gave a report that phone is received by the Company in tampered condition and the reason for closing of such warranty was shown as tampered and the pad was also in torn off condition and not only this the Antenna was also found in bad condition with scratch on body and camera glass clearly indicates that the phone was opened and tried to be tampered with, which clearly makes the OP out of the liability. In the above circumstances, OP has alleged that the complaint cannot be entertained. In view of the fact, everything was done by the complainant and he is tried to discharge is liability fixing responsibility of the OP for selling the same and for the tampered phone practically Nokia Company is liable but OP has tried to say that they tried hard to dispose of the dispute but anyhow it is not possible because the dealer did not take any responsibility and in the above circumstances, the complaint should be dismissed. Decision with Reasons After careful consideration of the allegation of the complainant in respect of the disputed mobile hand set and also the version of the OP we are confirmed that no doubt the manufacture company already cancelled the warranty of the said mobile sold by the OP to the complainant on 05-=10-2013 and complainant purchased the same with one year warranty covered by the manufacture and OP no doubt sold it and OP has admitted that subsequently he was reported that said mobile set was found tampered by the manufacturing company Nokia Care Centre and certificate was granted to the complainant and complainant tried to convince the OP for replacement but fact remains complaints were not entertained by the OP. But Ld. Lawyer for the OP has tried to show that the OP sold the same after purchasing the same from some other person so it is a resale but in this case such sort of argument on behalf of the OP company is completely false and fictitious on that ground. In the respect it is specifically mentioned that he purchased different types of articles as Private Ltd. shop and he himself gave one year warranty covered by manufactures of that handset. He is the purchaser of bulk quantity of handset of different manufacturing groups and after selling the article the present OP cannot defy that the handset was OK it was not tampered one and they sold it intact condition but unfortunately on the very night of the purchase the problem was detected and on the very next date complainant went to the OPs shop but OPs did not give any proper relief but only somehow handling the same switched of condition was removed but thereafter, within two days again the entire set was found dead and truth is that on dead condition the Service Care Centre received it but they did not take any risk but sent it to the head Service Centre, Delhi and Delhi Service Centre reported the matter that it was tampered one and different items inside the set was torn and fact remains OP has not denied that fact but their only plea is that they are seller of the goods but guarantee is given by the manufacture company so they have nothing to say and if the article was tampered it was tampered by some other person after purchase but in this regard OP has produced copy of letter dated 12-12-2013 wherefrom it is found that after receipt of this complaint by the OP OP wrote a letter to the complainant informing the complainant to appear before their shop for redressal of his grievances in terms of replacement/resurgence/refund as complainant beliefs and they wanted to dispose of the issue and by that letter OP company expressed their desire for mutual and conclusive settlement in this matter and that letter has been submitted by the OP then it is clear OP was willing to replace or to refund this amount of the said handset realizing the fact that OP sold a tampered mobile set to the complainant but even after that they filed the written statement and denied their liability but they have not disputed the certificate of the manufacturing company regarding automatic expiry of the warranty on the ground the handset was tampered one then it is clear that the handset sold to the complainant was not in a good condition handset but it was a tampered set from the very beginning after handling the handset at the time of argument we have gathered that everything was done by very sophisticated technical hand at the shop of the OP when first time complainant went to the OP’s shop with dead condition of the set and invariably at that time the sophisticated hands of the OP damaged the entire handset and thereafter, complainant was not entertained by the OP but OP only stated that it is the liability of the manufacture or their service centre when complainant roamed from the service centre to service centre and ultimately from Delhi Head Service Centre it is reported that it is tampered one and now OP is denying the fact then it is clearly proved that OP is the man who sold the tampered handset to the complainant for which from the very first date the complainant faced several problems to use the mobile and truth is that from the very date of purchase on and from 05-10-2013 complain ant never used the same but invested more than 18,000/- and OP received it and OP is the seller merchant but truth is that this is the 4th case against the OP about the selling of such defective material and in all the cases Nokia Service Centre failed to give any service on the ground that such a mobile set was not issued from any manufacturer but such a mobile was tampered by the OPs or their expert mechanics and it is their products and in three cases also OP has refunded the money with cost and OP has been also imposed penalty in some other cases for adopting unfair trade practice and they have deposited the penalty also and it is the 4th case where a new defence has been taken that it is the admission of the OP after receipt of the notice of this case in writing on 12-12-2013 that they are always ready to replace and to refund the same and they also sent a letter to the complainant to mutually settle this matter. Truth is that complainant was ready and the matter was repeatedly placed to the OPs agent Uma Shankar Babu but that Uma Shankar Babu expressed before this Forum that it is not possible for him to settle the matter if the authority of the OP does not send any such concrete form of settlement and ultimately the case was heard but truth is that OP by adopting unfair trade practice sold away tampered mobile to the complainant even after receipt of good money of Rs.17,050/- and no doubt in the present case the conduct of the OP is unmerchantable and one after another case OPs unmerchantable attitude and conduct is proved and in the present case undisputed fact is that tampered mobile handset of Nokia Company was sold by the OP to the complainant for which as a seller OP adopted an unfair trade practice and when manufacturer has no liability to refund it then invariably the seller who sold a defective material shall have to refund the material to the complainant with cost and compensation when repeated unfair trade practice of the OP well proved. In the result, the case succeeds. Hence, Ordered That the case be and the same is allowed on contest against OP with a cost of Rs.5,000/- (Rupees Five thousand only). OP is hereby directed to refund Rs.18,050/- (Rupees Eighteen thousand fifty only) to the complainant and also to pay compensation of Rs.3,000/- (Rupees Three thousand only) for causing harassment and mental pain for non-getting any service from the new phone. OP is hereby directed to comply the order within 15 (fifteen) days from the date of order by paying a total sum of Rs.26,050/- (Rupees Twenty six thousand fifty only) failing which for disobeyance of the Forum’s order OP shall have to pay punitive damages @200/- per day till full satisfaction of the decree and further for adopting unfair trade practice OP shall have to pay a sum of Rs.5,000/- (Rupees Five thousand only) to this Forum as penal damages and this amount shall be deposited in this Forum. OP is directed to comply this order very strictly failing which the penal action shall be started against him u/s.27 of the C.P. Act.
| | [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | | 
