STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.88 of 2011)

M/s Spice Mobility Ltd., D-1, Sector 3, Noida.

……Appellant

V e r s u s

Shri Mohit Kochhar s/o Shri Amar Nath r/o #1308A, Sector 20-B, Chandigarh.

              ....Respondent

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:      HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

Argued by: Sh. Vikas Awasthy, Adv. for the appellant

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                           This appeal is directed against the order dated 16.3.2011, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it accepted the complaint and directed the OPs to refund a sum of Rs.10,050/- (Rs.7,550/- being the price of the mobile set and Rs.2,500/- as compensation for mental agony and harassment),  within a period of one month, failing which to pay the same with penal interest @ 18% from the date of filing the complaint till realization, besides Rs.7,000/- as costs of litigation.

2.                           The complainant purchased a Spice D-88, Gold Dual Mode (GSM+CDMA)] mobile set from OP-1 vide bill No.11354 dated 10.5.2009 for a sum of Rs.7,550/- (C-1).  The mobile set was covered under warranty, for a period of one year. According to the complainant, soon after its purchase, the mobile set started giving problems such as display, automatic switch off, auto restart, keypad not properly working.  He approached OP-3 and handed over the mobile set vide job sheet (Annexure C-2) for effecting necessary repairs.  After some days, the mobile set was returned to him on the ground that he violated the terms and conditions of warranty by trying to get it repaired, from a source, other than the authorized service centre.  It was stated that the complainant never got it repaired, from any other source, as the said set was covered under warranty. The complainant requested the OPs, to replace the mobile set, as it was not working properly, but to no avail.  It was further stated that the OP was deficient, in rendering service. When the grievance of the complainant, either to change the mobile set, or to pay the compensation, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.

3.                           OPs 1 & 3, were duly served, but none appeared, on their behalf, either in person or through any authorized representative, hence they were proceeded against ex-parte, vide order dated 9.6.2010.

4.                           OP-2 admitted the fact with regard to purchase of mobile phone in question.  It was also admitted that the warranty period for the set was one year.  It was stated that the nature of damage to the mobile set, was not covered, under the warranty.  It was further stated that the mobile set was got repaired from a source, other than the authorized service centre, by the complainant and, as such, he was not entitled to get the benefit under warranty.  It was denied that there was any deficiency, in service, on the part of the OP.  The remaining averments, were denied, being wrong. 

5.                           The parties led evidence, in support of their case.

6.                           After hearing the Counsel for the contesting parties, and on going through the evidence, and record, the District Forum accepted the complaint, in the manner, referred to in the opening para of the order.

7.                            Feeling aggrieved, the instant, appeal was filed by the OP-2/appellant.

8.                           We have heard the Counsel for the appellant, and have gone through the evidence and record of the case.

9.                           The Counsel for the appellant, submitted that since the mobile set had been got repaired, by the complainant, from an unauthorized person, and, as such, if the same became defective, and did not give proper service, he could not claim any benefit during the period  of warranty.  He further submitted that the mobile phone set got damaged due to liquid substance, which was not covered under the warranty.  He further submitted that the matter was fixed before the Lok Adalat. He further submitted that during the proceedings, before the Lok Adalat, the complainant refused to accept the handset.  He further submitted that, as such, the objective of the complainant was to extract money, from the appellant. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 

10.                       After giving our thoughtful consideration to the contentions, advanced by the Counsel for the appellant, in our considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded hereinafter.  There is, no dispute with regard to the factum that the complainant purchased the mobile set from City Portraits and Colour Lab (OP-1) vide bill dated 10.5.2009 (Annexure C-1) for a sum of Rs.7,550/-. Since the mobile set started giving trouble immediately after the same was purchased, it was taken to the appellant/OP-2.  Annexure C-2 is a copy of the job sheet. From this document, it is apparent, that the mobile set was handed over to OP-3 for repairs.  Even after said repairs, during the warranty period, the problem in the set, could not be rectified. The set, as stated by the complainant, in his affidavit, filed in the shape of evidence, continuously gave trouble. It was, under these circumstances, that the complainant requested the OPs to either change the mobile set or pay compensation, but they slept over the matter. On the other hand, they concocted a story, that since the mobile set had been got repaired, from an unauthorized person, the complainant could not take benefit of the warranty period.  No evidence was produced by the OPs, that the set was got repaired from any other unauthorized person, and, if so, what was the name of that person.  No affidavit of any engineer or expert, who checked the mobile phone, and found that the damage was due to some liquid substance, which did not come within the purview of warranty, was also produced.  On the other hand, the complainant, in his affidavit, in clear-cut terms, stated that he did not get repaired his mobile set, from any other source.  Under these circumstances, the District Forum was right, in coming to the conclusion, that the OPs were deficient, in rendering service. 

11.                       The order of the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 

12.                       For the reasons recorded above, the appeal, being devoid of merits, must fail and the same is dismissed with costs quantified at Rs.3,000/-.

13.                       Copies of this order be sent to the parties free of charge.

Pronounced.

4^th May 2011.

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER