Punjab

Moga

CC/16/160

Jatinder Kumar Arora - Complainant(s)

Versus

Saaru Mohindra - Opp.Party(s)

Sh. Vinod Sharma

08 Feb 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 160 of 2016

                                                                                      Instituted on: 17.11.2016

                                                                                      Decided on: 08.02.2017

 

Jatinder Kumar Arora, aged about 34 years, son of Sh. Surjeet Pal, resident of House no.161, Ward no.2, Mohalla Guru Teg Bahadur, Dharamkot.

                                                                                ……… Complainant

 

Versus

1.       Saaru Mohindra Telecom, near Govt. Girls Sen. School, Main Bazar, Moga.

 

2.       Apps, Daily Solutions Pvt. Ltd., Registered office Apps Daily Solutions Pvt. Ltd. D-3137 Oberjio Garden Estates, Chanivali Farm Road, Andheri East Mumbai- 400072.

 

3.       Apps, Daily Solutions Pvt. Ltd., Branch Office, Opposite Municipal Committee Office, Moga.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Vinod Sharma, Advocate Cl. for complainant.

                   Sh. Sudhir Kumar, Proprietor for opposite party no.1.

                   Opposite party nos.2 & 3 ex-parte.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Saaru Mohindra Telecom, near Govt. Girls Sen. School, Main Bazar, Moga and others (hereinafter referred to as the opposite parties) directing them to replace mobile Micromax P-469 IMEI nos. 911444150374278, 911444150374286, Colour white or to refund the amount of Rs.6300/- i.e. price of the aforesaid mobile. Further opposite parties may be directed to pay Rs.20,000/- on account of compensation, damages, mental tension unnecessary harassment and deficient services to the complainant or any other relief which this Forum may deem fit and proper be granted to the complainant.

2.                Briefly stated the facts of the case are that the complainant purchased one micromax P-469 color white bearing IMEI nos.911444150374278, 911444150374286 worth Rs.6300/- from opposite party no.1. At the time of delivery, the opposite party no.1 has given guarantee for one year against any manufacturing defect. Opposite party no.1 got insured the aforesaid mobile from opposite party no.3, who charged Rs.799/- and they assured that in case of any defect, the same would be removed within one or two days. After purchase the aforesaid mobile, the same had fallen and got damaged and became out of order. The complainant went to opposite party no.1 and lodged the complaint with it. They told the complainant to contact with opposite party no.3. Accordingly the complainant visited to opposite party no.3. The complainant handed over the said mobile phone to opposite party no.3 on 6.10.2016. Morethan one month has been elapsed, but the opposite party no.3 has not returned the said mobile to the complainant. The complainant approached to the office of opposite parties a number of times and requested it to replace the mobile phone, as the same was out of order, but the opposite partied did not pay any heed to the request of the complainant and refused to replace the same without any rhyme or reason. Due to defective mobile phone, the complainant has to suffer loss financially, socially and economically. The services rendered by the opposite parties are deficient one. Hence this complaint.

3.                Upon notice, Sh. Sudhir Kumar, Proprietor of opposite party no.1 appeared in person and filed written reply taking preliminary objections that the present complaint is not maintainable against answering opposite party; that no cause of action much less plausible cause of action has arisen in favour of the complainant. So, the complaint is liable to be dismissed. Moreover, the complaint is false, fabricated and misconceived one; that the complainant has not come before this Forum with clean hands. The principal of suppression very suggestion false applied against the complainant and the present complaint deserves to be dismissed on this score alone. Where a consumer found to have approached consumer Fora not with clean hands and clear conscience, his complaint is liable to the dismissed. On merits, para nos.1 to 3 and 5 of the complaint are admitted to be correct. Further submitted that the answering opposite party had never given any guarantee to the complainant. It is the company who provided the guarantee to the complainant against any manufacturing defect. Further on the request of the complainant, the answering opposite party got insured the product from the opposite party no.3. The complainant never came to the shop of the answering opposite party after 09.01.2016. The complainant made a concocted story just to harass and humiliate the answering opposite party and just to blackmail them to grab the money. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with heavy costs has been made.

4.                Notice issued for the service of opposite party no.2 sent through registered post. But the same was not received back either served or un-served. As such, after expiry of statutory period since issue of notice, opposite party no.2 was ordered to be proceeded against ex-parte. On the other hand, notice issued for the service of opposite party no.3 was duly served, but despite service of notice, none appeared on behalf of opposite party no.3. As such, opposite party no.3 was ordered to be proceeded against ex-parte.

5.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-4 and closed the evidence. 

6.                On the other hand, Sh. Sudhir Kumar, Proprietor of opposite party no.1 tendered in evidence his duly sworn affidavit Ex.OP-1 and closed the evidence.

7.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

8.                Ld. counsel for the complainant argued that he purchased a mobile phone from opposite party no.1 worth Rs.6300/- on 09.01.2016 against duly issued bill, copy of which is Ex.C-2. At the time of sale of mobile, opposite party no.1 gave one year warranty against any manufacturing defect. The complainant got his mobile phone insured from opposite party no.3 against any type of damage or defect of the mobile phone. The mobile phone of the complainant fell down on ground, due to which the same got damaged and became out of order. The complainant lodged the complaint with opposite party no.1, who told to contact with opposite party no.3. The complainant deposited the mobile with opposite party no.3 on 6.10.2016. However, thereafter opposite party no.3 kept the said mobile set with him and failed to return the same to the complainant after due repair. The complainant approached the office of opposite parties many times and requested them to replace the handset, as the same became out of order, but to no effect and refused to replace the same without any rhyme or reason. The services rendered by the opposite parties are deficient one. The opposite parties may be directed to replace the mobile phone of the complainant and also to pay compensation.

9.                On notice, opposite party no.1 appeared in this Forum and filed his written reply. The opposite party no.1 admitted that the alleged mobile phone was sold by him, but no such guarantee as alleged by complainant is given by them, rather the manufacturing company provided one year warranty regarding manufacturing defect to the customers, through their service centres and opposite party no.1 is nothing to do with the warranty. He admitted that complainant purchased insurance cover for his mobile phone from opposite party no.3. But the opposite party no.1 has nothing to do with the insurance cover. The insurance claim regarding mobile phone, if any, is only to be settled by opposite party no.3, opposite party no.1 has no role in it. The complainant never came to the shop of opposite parry no.1 after 09.01.2016 regarding any problem or damage in the mobile phone. So, the present complaint against opposite party no.1 deserves dismissal. Opposite party nos.2 & 3 are proceeded against ex-parte and there is no rebuttal on their side.

10.              We have thoroughly gone through the file, evidence and arguments lead by counsel for the parties. The case of the complainant is that he purchased a mobile phone from opposite party no.1, which was insured with opposite party nos.2 & 3 and during the insurance cover his mobile set got damaged and he approached opposite party no.3 for the repair of the same, but they not only failed to remove the defect in the mobile phone, but also failed to return the same to the complainant. Now, it is admitted case that complainant purchased a new mobile phone, which was insured with opposite party nos.2 & 3. It is further proved that the hand set in question got damaged and the complainant deposited the same with opposite party no.3 for repair, vide receipt dated 06.10.2016 Ex.C-3 who failed to remove the defect in the mobile hand set and did not return the same to the complainant. He argued that there was one year guarantee given by the insurance company against any defect in the mobile phone. To prove his case, complainant produced copy of the bill dated 09.01.2016 as Ex. C-2 and Damage Handset Declaration Ex.C-3 and copy of insurance terms and conditions as Ex C-4 However the opposite party nos.2 & 3 who issued the alleged insurance policy to the complainant and received insurance charges and gave assurance that they made goods loss in event of the mobile of the complainant got damage or defective. Therefore liable to pay insurance claim of the complainant and by not paying the insurance amount to the complainant, amounts to deficiency in service and trade mal practice on the part of OP-2 & 3.

11.              From the above discussion, the complaint in hand is hereby allowed against opposite party no.2 & 3, directed to replace the mobile phone of the complainant with new one of the same make and model. Further opposite party no.2 & 3 are directed to pay Rs.3000/-(Three thousand only) as compensation on account of harassment and mental agony suffered by the complainant and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. The complaint against opposite party no.1 stands dismissed, as he is only the retailer and used to sale the product as received from manufacturer. Compliance of this order be made within one month from date of receipt of the copy of this order, failing which, the complainant shall be entitled to initiate proceedings against opposite parties under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 08.02.2017.

 

 

                             (Bupinder Kaur)                     (Vinod Bala)               (Ajit Aggarwal)

                                   Member                               Member                      President