Order No. . This is an application u/s.12 of the C.P. Act, 1986. Main allegation of the complainant is the he purchased one mobile phone Nokia ASHA-501 from S.H. Mumtazuddin Times (P) Ltd. on 24-09-2013 and at the time of sale OP disclosed that it is a new set but after verifying from a Nokia Shop he learnt that this set is not a new one as the opener button of this set has been replaced and no memory card is included in this set in spite of mentioning inclusion of a 4 GB memory card on the mobile box. Further no seller has the right to paste his shop’s sticker on the Nokia mobile box but OP pasted sticker on the mobile box. Complainant had to pay Rs.3,000/- more for anti-virus, Nokia loading and driving charges but nothing was loaded. There are discrepancies in the serial number of the cash memos so, complainant went to OP’s shop and pointed out the above defects and asking the OP to refund the whole amount what he paid but they refused and, in fact, OP has deceived him as a seller. So, in the above circumstances, complainant has prayed for refund of the entire amount of Rs.7,770/- and also compensation for harassment etc. Notice was duly served upon the OP and one Uma Sankar Dutta on behalf of the OP appeared on 20-02-2014 and they also submitted some queries on that date. Thereafter, on 20-03-2014 OP submitted written version stating that they are not disagree about the selling of the said mobile set to the complainant and this type of slackening of serious attention had happened due to rapid dealing/handling by many more customers at the rush hour of the business day. But this kind of flaw could have been set right, if the complainant would visit to their shoproom for alteration without making any delay. As regarding pasting of sticker on the Nokia mobile box is an internal business affair in between the dealer and the manufacturer and 3rd party has nothing to say about that. But they have admitted discrepancies which may arise obviously since there occurred a lot of transactions of different types of product, as a result of which sequential number of every cash memo may be possible to come out at variance sometimes, which cannot be debarred or hindered. It is completely under operation of automation. Further it is stated that antivirus had been loaded in the said mobile with evidence of relative cash memo which bears two years guarantee and it is clear and they have submitted that they shall have to proceed ahead in the matter in regard to replace or refund as the case may be according to the existing condition of the above set and they submitted the same. Thereafter on 27-03-2014 OPs agent appeared and submitted that they are not willing to file any evidence accordingly, the case was closed and argument was heard on 11-04-2014. Decision with Reasons Now, we shall have to consider what the complainant has been able to prove the matter. On proper consideration of the entire materials including the receipt it is found that Nokia set was purchased by the complainant and along with that loading charge etc was also received by the OP and fact remains complainant admitted that there may be some discrepancies serial no. in the receipt and it was caused due to operation of automation but fact remains complainant when went to the authorized service centre they already disclosed that the present Nokia mobile set is not a new one but it is a combination of different type of Nokia Cashcate and no such Nokia by such colour is available in the market and at the time of argument Uma Sankar Dutta, the agent of the OP was present. He also handling the Nokia set as produced by the complainant and this Forum has also observed the set and it is found at its bi-colour but there is no bi-colour Nokia Set in the market and fact remains in the said Nokia set there are several scratches etc. and OP has tried to convince that it is due to handle by customer at the time of selecting different sets and it is equally true that it is not new mobile no doubt and moreover no memory card is included in the set inclusive of the 4 GB Mobile chip in the mobile box that has been confirmed. So, considering the above fact and conduct of the OP we find that OP has been selling such sort of articles and in 3 or 4 incidents also such type of practice of the OP has been confirmed by this Forum and OP has been penalized for which OP refunded money in that respect. Most interesting factor is that in the tax invoice bill there is no receipt number, not even there is any number of shop and establishment license in the said receipt and considering the entire mobile set we have gathered that it is assimilation of different sets and after considering the box it is clear that the box for which the said mobile set was supplied to the complainant is completely purported box for the purpose of selling but the said handset has been no doubt a second hand one and for which the Nokia Service Care Centre did not receive it to check up other matter but they found that it is not brand new one. So, considering that fact and also the efforts of the OP’s agent we are confirmed that the OP is willing to refund the same after receipt of the said set and fact remains this conduct has been shown by the OP and for which they have been penalized and they have paid such penalty refunded the sale price to such customers before this Forum and this is the 5th case in which mal practice has been found continued by the OP in selling such handset of Nokia which is a second hand and assimilated one and for which invariably complainant must not have to enjoy such a second hand mobile on payment of good money against first hand mobile including other charges and in the premises we have found that OP deceived the present complainant and sold one second hand mobile and the colour of the mobile is not also known to the company and, in fact, OPs agent failed to satisfy the complainant’s allegation by any means for which we are directing the OP to refund the entire amount because they deceived the complainant by selling of such a mobile set and also to pay compensation for her harassment because he is a man of Hooghly wherefrom they came to OP’s so called renowned shop for purchasing a choiceable mobile but ultimately is deceived by the OP. In the result, the case succeeds. Hence, Ordered That the case be and the same is allowed on contest against the OP with a cost of Rs.2,500/- only. OPs are directed to refund a sum of Rs.7,770/- to the complainant and also to pay a compensation of Rs.3,000/- for adopting unfair trade practice again and again and also in this case OPs are imposed a penalty of Rs.4,000/- for adopting unfair trade practice which shall be paid to this Forum as punitive damages. OP is directed to satisfy the decree by paying Rs.2,500/- as cost, Rs.7,770/- as total receipt by OP at the time of selling of mobile set to the complainant and also Rs.3.000/- which has been awarded as compensation to the complainant, i.e. totaling Rs.13,270/-(Rupees Thirteen thousand two hundred and seventy only) to the complainant within 15(fifteen) days from the date of this order and also shall have to pay the punitive damages of Rs.4,000/- to this Forum within 15 days failing which for non-compliance of the Forum’s order OP shall be prosecuted u/s.27 of the C.P. Act and for which further penalty may be imposed upon them.
| | [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | |
