Judgment & Order dt. 30.03.2017
This is a case instituted by the complainant u/s 12 of the CP Act, 1986, praying for passing an order directing the OP to return the mobile handset of the complainant and also to pay compensation amounting to Rs.10,000/- for harassment caused to him.
The summation and the summarization of the facts leading to the filing of the case may be described as follows :-
Factual matrix:
The complainant had a mobile phone bearing Samsung Model No.GTS-3653H with two SIMS. But, the Airtel network service was not properly available in that mobile handset of the complainant, despite placement of the SIM. So, on 10.11.2016, he took the mobile handset to the service centre of the OP for service. He was told from the service centre that a software was to be installed in the set and it would cost Rs.220/-. The complainant agreed and delivered the set to the OP centre for doing the needful. One customer information slip was granted to him by OP and he was asked to wait outside. He i.e. the complainant waited and waited, ultimately he was asked to come on any other day as the mobile handset could not be rectified by that time. About 3/4 days thereafter, he came to know that the said mobile handset had not been repaired. On 15.11.2016, he went to service centre to the OP; they took back the customer information slip from him and delivered the set to him after proper repair. But, the complainant could not test the workability of the set that moment, as there was no charger with him and the service centre also did not provide any charger to him.
Coming back home, he discovered that the network was not properly available and that the touch screen and camera of the set were not at all in any working condition. Then and then, he did not miss to contact with the service centre and the service centre asked him to produce the set again before them with assurance to repair the same free of cost this time. On 17.11.2016, the complainant again took the set to the service centre, which received the same and granted customer information slip to him. On 23.11.2016, he again made contact with the OP Centre and the said centre pleaded for a further time of 3/4 days. On 28.11.2016, one SMS was sent to the complainant, informing him of the repair being completed. On 11.12.2016, having reached the OP centre, he found that the touch screen/ plate of the mobile handset was working, but network and camera were not at all working. The service centre of OP told the complainant to get the aforesaid two defects repaired at his own cost. They also demanded the customer information slip from the complainant, but the complainant produced the photocopy thereof before the OP. It was only at that time, the OP bristled with anger and gave out that they did not receive the mobile handset from the complainant and also abused the complainant. Frustrated, the complainant returned home with empty hand and has filed the instant case, praying for return of the mobile handset in full working condition with warranty and for compensation of Rs.10,000/- for physical and mental harassment caused to him by the OP centre. Hence, arises the instant case.
Defence Case:
One Subhadeep Saha, service centre-in-charge of the OP has made appearance in this case and he has also filed a written statement to contest herein, wherein it is contended inter-alia that the case is not maintainable in its present form and in law, that there is no cause of action in the case filed against him, that the complaint is illegal, vague, baseless and that the complainant is therefore, not entitled to get relief as prayed for. The positive case as made out in the written statement is that the complainant never approached the OP service centre and never produced his mobile handset as alleged for repair service. The customer information slip as produced by the complainant before the Forum is absolutely false. The SMS print out, which is filed before this Forum by the complainant is not in respect of the mobile handset in question; it might be in respect of any other mobile handset. So, according to the OP, the complaint should be dismissed in limini with costs.
Upon the averments of both the parties the following issues are formulated for consideration in the case:
Issues:
- Is the case maintainable in its present form and in law?
- Did the complainant ever deposit his mobile handset in the OP service centre?
- Has the complainant been made a victim to the deficiency in service by OP ?
- Is the complainant entitled to get relief as prayed for and if so, to what extent?
Evidence of the Parties:
The complainant has filed an affidavit-in-chief and he has got himself examined as PW-1. The documents admitted in evidence on his behalf are marked as Ext. Nos. 1 and 2 as detailed in the list of documents kept in the record. On the other hand, Mr. Subhadeep Saha has also filed affidavit-in-chief and has been examined as OPW-1. A series of documents has been produced by the OPW-1 before the Forum and all those documents are marked as Ext. Nos. A, A/1, A/2, A/3. A/4, A/5, A/6 and A/7 also detailed in the list of documents kept in the record.
DECISION WITH REASONS
Issue No.1:
On perusal of the materials on record, it is revealed that the complainant is a consumer. He promised to pay Rs.220/- to the OP for software placement, so that the Airtel network service would be available in his mobile handset. All these are stated by the complainant (PW-1) in his evidence and these have not been contradicted by the OP. The complaint is also seen to have been filed within the period of limitation with an allegation of deficiency in service against the OP. Regard being had to all these things, it cannot be said that the complaint is not maintainable in its present form and in law. Hence, this issue goes primarily answered in favour of the complainant.
Issue No.2:
Ld. Lawyer appearing for the OP has dished up an argument that there is no concluded contract between the complainant and the OP, that no paper as to alleged defective mobile has been produced before the Forum by the complainant, that the customer information slip (Ext.1) does not contain any seal or signature of any one of the OP centre and that the SMS print out copy (Ext.2) does not prove the mobile phone in respect of which the SMS was sent to the complainant.
According to him, the complainant has not been able to substantiate that any mobile phone of him was made over to the OP centre for service. On the other hand, OPW-1 has stated on oath, as goes his submission, that the complainant did not deposit any mobile phone with them. He i.e. the OPW-1 has also proved the procedure one by one, which is required to be adopted whenever any mobile set is received in his service centre. Had the complainant produced any mobile set before the OP service centre, he would have been able to file the token number, customer information slip, job sheet etc. which are usually issued from the OP centre in usual course of business transaction. The complainant has not been able to produce any such document before the Forum and the non-production of the document goes to substantiate that the complainant never brought his mobile set to the service centre and that he has filed a false and concocted case against the OP in order to besmirch his reputation.
The complainant is not represented by any Lawyer. He himself submits that he went to the service centre several times for rectification of his mobile phone, which he deposited with the OP service centre. He further submits that he has no business to file a false case against the OP service centre.
Heard the submissions canvassed on both sides. Perused the complaint and the written statement filed against thereto. Also perused the evidence adduced on record by both the parties. Considered all these.
A 100-mile journey begins at a single step. Similarly, we want to start our journey in this record also from a single step i.e. a single document. This single document is considered to be a safe one for the purpose of reliability. This is marked as Ext.2 and it is a SMS print out produced by the complainant. OPW-1 has admitted the genuineness of the document. According to him (OPW-1), such kind of SMS is sent to the consumer by the company through the system, as soon as the information is uploaded by them i.e. the service centre. Genuineness of the SMS (Ext.2) is not disputed, but it is argued that the SMS might have related to some other mobile handset of any other person. The SMS was received by the complainant. It relates to the repairing of a product. Instruction has been given therein for collection of product from the OP centre by this SMS (Ext.2). It stands proved that one mobile handset was received by the OP centre for service and that the service of repairing was completed. It also stands proved that the SMS was received by the complainant. It has been admitted by OPW-1 in his evidence that whenever the service relating to any mobile phone deposited is completed, the information about completion of such service is uploaded by them and then the company sends information about the completion of service to the customer by way of SMS. Here, the SMS is received by the complainant and it has been informed to him by the said SMS which has been sent by the company through its system, that the service of the mobile handset is completed. It has been contended on behalf of OP that the SMS copy does not mention any number of any mobile deposited by the complainant and it might have related to any mobile of any other person. ‘If’, ‘but’ and ‘might’ never prove any fact in issue. The version of OP is that the SMS (Ext.2) might have related to any other mobile of any other person. Such a plea as taken by OP appears to be moonshine. He could have produced the paper to establish that the SMS (Ext.2) is related to another mobile. It is he who received the mobile handset and all information pertaining to mobile received lies with him. He is the best person to say in respect of whose mobile set the said SMS (Ext.2) was sent to the complainant, because it was he who uploaded the information in the computer system at first. But, he is not able to supply any proof of that other mobile. In absence of such evidence which is expected to be produced from the side of the OP, we make no scruple to say that the complainant deposited his mobile with the OP for servicing and that’s why the SMS (Ext.2) was sent to him by the company.
It has been contended on behalf of OP that the complainant might have produced the customer information slip, job sheet, etc. to prove that he actually deposited the mobile set with the OP for servicing. Non-production of these documents by the complainant does not destroy the veracity of the fact established by the SMS (Ext.2). These documents are product of the OP himself; he may issue these documents or may not issue at his discretion. The documents are just like the monkeys dancing at the finger tips of the OP. So, non-production of the documents by the complainant does never nullify the fact established by the complainant, especially when the complainant himself has stated that those documents were not issued to him except the two i.e. Ext. nos. 1 & 2.
The complainant has been examined as PW-1. He has deposed that he deposited his mobile set with the OP and one Palash issued a slip to him when he deposited his mobile set.
Ext.1 is the slip and it contains one initial in English and one Bengali signature appearing to be of one Palash. According to the complainant, this slip (Ext.1) was issued by Palash who received the mobile handset from him in the OP service centre. OPW-1 absolutely denies the issue of this slip by Palash. In his evidence, he has admitted that Palash Mondal is his engineer in the shop. But, he denies the initial as well as the signature of Ext.1, which appeared to be of Palash. Mere denial of the initial and the signature of Palash by OPW-1 does not prove that the said slip i.e. Ext.1 was not issued by Palash. Palash is the best person to say whether he issued the slip in favour of the complainant or whether the slip contains his initial and signature. But, the OPW-1 has not cited him as witness. Under such circumstances, an adverse presumption can be had against the OPW-1 and it can be held safely that Palash has not been produced as witness by OPW-1 for simple reason that the cat will be out of the bag. Be that as it may, we would feel constrained to say that the OP has totally failed to substantiate his case that the complainant did never deposit his mobile handset with them. On the other hand, the SMS (Ext.2) coupled with the evidence of the complainant and also the slip (Ext.1) establish beyond the vestige of doubt that the complainant deposited his mobile phone with the OP for servicing and that the OPW-1 has denied such deposit of mobile phone with a view to evading his liability only. Hence, this issue also goes answered in favour of the complainant.
Issue No.3 & 4 :
Now to see whether the complainant has been made a victim to the deficiency in service by the OP. It transpires in the evidence of the complainant (PW-1) that he deposited the mobile handset with OP service centre on 10.11.2016 as Airtel network service only was not available. On 15.11.2016 he took delivery of the mobile handset after completion of repairing and going back home, he found that the Airtel network service is available, though in weak form, but the touch screen and camera are out of order. He had to carry back the mobile phone again to the service centre on 17.11.2016 for service. On 1.12.2016 (probably written as 11.12.2016 mistakenly in the complaint through over sight), he again went to the centre for collection of his mobile set. But, this time also the mobile handset was not delivered to him. All these are in the evidence of PW-1. All these go a long way to prove deficiency in service by the service centre. There is no gainsaying that the complainant deposited the mobile with OP for repair. But denial on behalf of the OP unabashedly about the receipt of mobile handset from the complainant is not only deficiency in service but also crass deficiency in service. The OP misappropriated the mobile handset of the complainant, the whys and wherefores are best known to him. OP’s shenanigan is clearly exposed by his sheer denial about receipt of mobile phone from the complainant. He could have stated before the Forum that the complainant did not make over the receipt granted to him and therefore, mobile phone was not delivered to him. But, this is not the case of the OP; he has resorted to utterly false plea and has even gone to the extent of misguiding the Forum by producing some concocted papers about which we are going to highlight hereinbelow.
The conduct of OPW-1 before the Forum needs to be highlighted. We will be deficient in discharge of our solemn duties, if the conduct of OPW-1 is not illuminated here. According to OP, they follow a procedure step by step whenever a mobile phone is received by them from any customer. The procedure includes taking of token number, issue of customer information slip, then the job sheet etc. and etc. A relevant portion of the deposition of OPW-1 needs to be quoted. It goes thus -
“· Whenever a customer approaches our service centre with any defective mobile for service, he is first required to have a token slip.
· Then, customer information slip is filled up by the customer.
· Then, customer information slip is deposited with Customer Care Officer (CCO) and the problem of defective mobile is to be mentioned in customer information slip against the column of ‘issue description’.
· If the problem relates to software it is rectified then and then within 1 or 2 hours and the said mobile set is returned to the customer. But, if it relates to hardware and if it is found that any component parts is required to be replaced, then the customer is told to make an advance deposit”.
By the above deposition of OPW-1, an attempt has been made to establish that the customer information slip is first issued to the customer when he approaches the service centre for any service and then he is asked to make an advance deposit, if required. To prove the procedure, some documents such as money receipt, token number, customer information slip etc. have been filed by the OPW-1 from his office record documents before the Forum and these have been marked as Ext.A series detailed in the list of the documents kept in the record. Ext.A is money receipt dt. 21.2.2017 and Ext.A(ii) is the customer information slip dt. 20.3.2017. A minute scrutiny of these two documents reveals that the Ext.A i.e. money receipt has been issued prior to issue of customer information slip. Such type of issuance got stuck to the notice of the Forum, as it was against the procedure as deposed by the OPW-1. Then and then the discrepancy was brought to the notice of OPW-1 and explanation was sought for. The explanation of OPW-1, as it transpires in his deposition, goes thus, “on 21.2.2017 also, the customer i.e. Aditya Saha deposited a customer information slip. But, that customer information slip has not been filed before this Forum, as it has been thrown away……” The explanation appears to be not sufficient. It seems to be a concocted one. In the face of contradictory materials in evidence of OPW-1 it appears that he has prevaricated the truth and he has also been making an attempt to hush the actual state-of-affairs. The truth is : the complainant deposited his mobile set with OP for servicing and that OP is denying the receipt of the mobile now for the purpose of evading his liability. The filing of false and concocted documents before this Forum lends a good deal of assurance to the fact as stated by the complainant.
OPW-1 is whining all the while that a false claim has been brought against him by the complainant in order to destroy his reputation he has earned in the market through his prolonged business over the years. This claim of OPW-1 also appears to be a flatulent one. When will a man indulge in besmirching the reputation of another? Such an exercise may be presumed only when their exists an enmity between the two persons. In the instant case, there is no whisper whatsoever in any corner of either pleading or evidence that there is an inimical relation between the complainant and the OPW-1. In absence of such strained relationship, we are the last persons to swallow the bitter pill of OPW-1.
It is to be seen now whether the complainant has suffered any physical and mental harassment. The complainant lives in Tapan PS and the service centre is situated at a distance of about 25 kilometers at Balurghat. It transpires in the evidence of the complainant (PW-1) that he had to run to the service centre of OP on several days for getting return of his mobile handset. He approached the service centre on 10.11.2016, 15.11.2016, 17.11.2016 and lastly 1.12.2016. Last of all, he was thrown away and the mobile handset was not even returned to him by the OP. Regard being had to these facts and circumstances, we do hold that the complainant has certainly been made a victim to continuous physical and mental harassment by the OP. He has lost his mobile handset also due to malfeasant act of the OP. Harassment caused to the complainant by the OP day after day is the last straw on the camel’s back and to get rid of such harassment he had to cough up the instant complaint case. The malpractice adopted by the OP should be put to an end so that no innocent consumer falls a victim to it in near future and, therefore, a deterrent measure by way of slapping punitive compensation becomes the need of hour. Return of the mobile set to the complainant, as prayed for by him, is likely to create future complications and to avoid it; we think the OP had better pay compensation therefor to the complainant. The complainant is entitled to get a heavy compensation including punitive compensation for loss of his mobile handset and also for unsavoury conduct of the OP with him and before the Forum. Hence, these two issues are also answered in the long run in favour of the complainant.
In the result, the case succeeds accordingly.
Hence,
O R D E R E D
that the complaint case be and the same is allowed on contest against the OP with cost.
The complainant do get an order of payment of Rs.10,000/- as compensation for misappropriation of his mobile set, Rs.5,000/- as compensation for physical and mental distress suffered by him and a further sum of Rs.10,000/- as punitive compensation for malfeasant act of OP together with the cost of litigation which is quantified to be Rs.2,000/-
The OP is directed to make payment of the entire compensation amount and cost of litigation totaling to Rs.27,000/- (Rs.10,000/- + Rs.5,000/- + 10,000/- + Rs.2,000/-), (Rupees Twenty seven thousand) only within a month of the receipt of this order of the Forum, failing which the complainant is at liberty to recover the same by execution of this order with interest @ Rs.12% p.a. on the compensation amount from the date of order till the date of realization and when the compensation amount is realized from the OP, the complainant will pay a sum of Rs.10,000/- out of the said amount of compensation to the Consumers’ Welfare Fund for protection of the helpless and hapless consumers by way of legal aid.
Let a free copy of order be supplied free of cost at once to each of the parties concerned.
