DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA.<br /> <br /> Complaint No.80/30.04.2007<br /> Decided on : 25.03.2009<br /> <br /> Smt.Kamlesh Rani W/o Sh.Krishan Kumar, Resident of Old Post Office Street, Mansa.<br /> <br /> ..... Complainant.<br /> <br /> VERSUS<br /> <br /> 1.M/s Shiva Communications, Gurdwara Chowk, Mansa through its proprietor/partner.<br /> <br /> 2.Nokia India Pvt. Ltd., through Nokia Care Centre, Khoo Wali Gali, Mansa.<br /> <br /> 3.Nokia India Pvt. Ltd., seventh floor, commercial plaza, Radison Hotel,<br /> NH-8, Mahipalpur, New Delhi-37.<br /> <br /> ..... Opposite Parties.<br /> <br /> Complaint under Section 12 of the <br /> Consumer Protection Act, 1986.<br /> .....<br /> <br /> Present: Sh.Bimal Chander, Advocate, counsel for the complainant.<br /> Sh.Bimaljit Singh, Advocate, counsel for the OP No.1.<br /> Sh.Omkar Mittal,Advocate, counsel for the OP No.2.<br /> Sh.Vishvpreet Garg, Advocate, counsel for the OP No.3. <br /> <br /> Before: Sh.Sarat Chander, Member.<br /> Smt.Neena Rani Gupta, Member.<br /> <br /> ORDER:<br /> <br /> Sh.Sarat Chander, Member <br /> Kamlesh Rani (hereinafter called as the complainant) has filed the present complaint against M/s Shiva Communications, and others(hereinafter called as the OPs No.1,2 & 3, respectively) under Section 12 of the Consumer Protection Act, 1986.<br /> 2. Brief facts of this complaint are that the complainant had purchased a mobile set N.3120 from OP No.1, manufactured by OP No.3<br /> Contd........2<br /> : 2 :<br /> <br /> bearing No.357088 003556150 vide bill No.026 dated 8.5.2006 in the sum of Rs.3900/-. OP No.1 gave warranty for successful functioning thereof for a period of one year. The mobile purchased by the complainant creates noise because of which the voice of caller is not audible and difficulty is also faced in making the calls. The call is also disrupted in between because of manufacturing defect and complainant is finding difficulty to use the same for the said reason. On being approached by her, OP No.1 convinced her that with the passage of time all the defects in her set would automatically be removed, but the defect in the set still persist, although the same has been repaired by OP No.2 twice. The complainant approached OP No.1, 15 days before filing of the complaint for replacement of the set or in the alternative to refund the price thereof, but he has refused to oblige her. The complainant claims to have suffered mental harassment and has prayed that she is entitled to claim compensation in the sum of Rs.10,000/- and for replacement of the set and in the alternative for refund of the amount paid by her. Hence this complaint.<br /> 3. The OP No.1 in its written version has taken certain legal objections. On merits, it was admitted that mobile set was issued to the complainant, but it is denied that guarantee, if any, was given by the manufacturing company and not by the replying OP. It was not specifically denied that mobile set was repaired twice at the instance of the complainant for removal of the defect therein. A prayer for dismissal of the complaint was accordingly made.<br /> 4. OP No.2 appeared and filed written version by taking legal objection that complaint is bared by limitation and the replying OP has no concern with the manufacturing company. On merits, it is denied that complainant ever approached him for repair of the defect in the mobile set purchased by her from OP No.1. All other allegations were denied and a prayer for dismissal of the complaint was made.<br /> Contd........3<br /> : 3 :<br /> <br /> 5. The defence of OP No.3 was struck off vide order dated 20.1.2009 before filing of written version.<br /> 6. Parties led their respective evidence in the shape of affidavits and documents.<br /> 7. We have considered the arguments advanced by the learned counsel for the parties and carefully gone through the record of the case.<br /> 8. Learned counsel for the complainant has submitted that purchase of the mobile set and repair thereof are not denied by OP No.1 and as per affidavit of the complainant, the manufacturing defect in the set still persist. Hence OPs be directed to replace the mobile set or in the alternative to make the payment thereof alongwith interest.<br /> 9. Learned counsel for OP No.1 has submitted that mobile set has been received by the complainant at the time of purchase after full satisfaction and she has not examined any expert witness to establish that mobile set is having manufacturing defect and warranty for successful functioning of the mobile set might have been given by the manufacturing company. OP No.1 is not liable to replace the same or to refund the amount and pay compensation to the complainant.<br /> 10. Learned counsel for OP No.2 has submitted that his client has no concern with the mobile set or repair thereof and complaint against him is bound to fail.<br /> 11. Learned counsel for OP No.3 has submitted that manufacturing company is not responsible as it has no knowledge for sale of mobile set to the complainant, who has never approached the said company with any defect. Therefore, no liability can be fastened on his client for any defect in the mobile set.<br /> The complainant has purchased the mobile set from OP No.1 for a sum of Rs.3900/- on 8.5.2006, as evident from the copy of the purchase invoice Ext.C-2 and contents of her duly sworn affidavit Ext.C-1. She has also produced on record copy of job card Ext.C-3 issued by OP<br /> Contd........4<br /> : 4 :<br /> <br /> No.1 at the time of repair of defect in speaker due to no tone. This document is dated 10.8.2006. The sale of mobile set and its repair is not disputed by OP No.1 and OP No.3 has not specifically denied that mobile set sold by OP No.1 to the complainant has not been manufactured by him. No evidence to the contrary has been led on record before defence of OP No.3 was struck off. As such, the contents of the affidavit filed by the complainant have gone uncontroverted and cannot be overlooked by us. The instant complaint has been filed on 30.4.2007 and the cause of action to the complainant has accrued to file the complaint on 10.8.2006, when dealer of mobile company failed to remove the defect. Therefore, complaint is well within the period of limitation as provided in Section 24A of the Act. The complainant has no reason to file the complaint and to incur unnecessary expenses and waste time, in case her mobile set had been functioning properly. Since no evidence has been led by the manufacturing company, therefore, no ground is made out to deny relief sought by the complainant. Since nothing has been established on record that OP No.2 has any concern with the mobile set directly or indirectly, therefore, no liability can be fastened upon him. However the dealer and manufacturing company cannot escape liability and in our opinion they are jointly and severally liable for manufacturing defect in the mobile set. As the defect in the mobile set has not been removed despite repair, therefore, we have come to the conclusion that it is a fit case in which the dealer and the manufacturing company are liable and are directed to refund the amount of Rs.3900/- paid by her vide purchase invoice Ext.C-2, alongwith interest @ 9% p.a. from the date of purchase i.e. 8.5.2006 till actual payment. As we are going to award interest to the complainant, therefore, compensation cannot be granted to her simultaneously.<br /> In view of the above said facts, the complaint is allowed against OPs No.1 and 3 and dismissed against OP No.2. OPs No.1 & 3 are directed to refund the amount of Rs.3900/- to the complainant alongwith<br /> Contd........5<br /> : 5 :<br /> <br /> interest @ 9% p.a., jointly and severally, from the date of purchase of the mobile set i.e. 8.5.2006 till actual payment. Compliance of the order be made within a period of two months from the date of receipt of the copy of the order, which shall be supplied to the parties free of cost under the rules. File be arranged, indexed and consigned to record.<br /> Pronounced<br /> 25.3.2009<br /> <br /> <br /> Neena Rani Gupta, Sarat Chander,<br /> Member. Member. <br />