PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant is employed in the Naval Dockyard, Mumbai. On 16/11/08, the Complainant purchased HTC P3400i cell phone from Opposite Party No.3 – the Mobile Store for Rs.9990.01 paise. Alongwith complaint, Complainant has produced tax invoice of purchase of aforesaid cell phone. Opposite Party No.1 is a International Company, engaged in the business of manufacturing of cell phone. The cell phone purchased by the Complainant was manufactured by Opposite Party No.1 Company. Opposite Party No.2 is Authorized Service Centre of Opposite Party No.1.
2) It is averred in the complaint that the Complainant purchased aforesaid cell phone from Mobile Store, Malad (W), Mumbai, on the recommendation of sales person in the store, with an intention to use net and track Stock Market. After purchase of cell phone, on 18/11/08 he requested for activation of GPRS Operation but the cell phone was not made operational. On 29/01/09 he handed over the cell phone to Opposite Party No.2 for repair work. On 09/02/09, Opposite Party No.2 returned cell phone to the Company. However, GPRS was not properly operational. Alongwith complaint the Complainant has produced job card of the repair issued by Opposite Party No.2 – Salora International.
3) As the cell phone was not properly working, the Complainant again approached Opposite Party No.2 to make cell phone operational. Opposite Party No.2 again accepted the said cell phone for repair. On 20/06/09 the cell phone was returned to the Complainant. On 08/07/09 again it was sent back for repair which was delivered to the Complainant on 13/07/09. The Complainant has produced xerox copy of the job card issued by Opposite Party No.2 dtd.13/07/09.
4) It is submitted by the Complainant that the cell phone was not working properly and the purpose for which he bought the cell phone was never achieved. Being frustrated with the continuous problem of cell phone he sent letter dtd.24/08/09 to both the Opposite Party and demanded his money back and asked them to take back the cell phone. In the meantime, Opposite Party No.3 – Mobile Store closed down permanently. So he could not send letter dtd.24/08/09 to Opposite Party No.3. Opposite Party No.2 contacted him and offered to repair the same phone but the Complainant refused and asked to return his money. On 24/09/09 he again sent reminder to both the parties. Subsequently, he received a call wherein they offered to replace the cell phone but the Complainant was totally dissatisfied with the service of the Opposite Party and he demanded for the refund. The Complainant finally sent notice to the parties on 19/10/09 for refund of money. After service of notice he received another call in reply to his notice and the caller again gave offer of replace of said cell phone. The Complainant refused his offer and demanded for refund of the price of the cell phone. Person who gave an offer did not disclose his name and designation. On number of occasion the Complainant visited service centre but his grievance was not redressed. The Complainant suffered financial loss as he had to take leave for repeatedly visiting the service centre. It is alleged by the Complainant that the person who told his designation as Customer Care In-charge of Opposite Party No.1, rudely told him that “it is the company policy not to refund money therefore, cell phone can only by replaced or else you may do what you can”. Therefore, the Complainant has filed this complaint.
5) The Complainant has requested to direct Opposite Parties to refund the entire amount of cell phone price of Rs.9,990/- to the Complainant. Further he has requested to direct Opposite Parties to pay compensation of Rs.75,000/- towards inconvenience, physical & mental harassment and agony caused to the Complainant. The Complainant has also claimed Rs.10,000/- towards costs of this litigation. Total claim of the Complainant is Rs.95,000/-. Alongwith complaint, the Complainant has produced copies of documents at page no.13-29.
6) Opposite Party No.1 was duly served with the notice of this complaint by RPAD. Inspite of service, notice of Opposite Party No.1 has not appeared before this Forum. Opposite Party No.2 did not collect postal envelope/notice which was sent by RPAD and it was returned with postal endorsement “Intimation Postage”. Therefore, on 14/09/2010 ex-parte order was passed against the Opposite Party No.1 & 2.
7) Opposite Party No.3 has appeared and filed his written statement and thereby resisted claim of the Complainant contending that complaint is bad for misjoinder of parties and therefore, deserves to be dismissed. According to Opposite Party No.3, he is merely employee of the Company and so he cannot be joined as party to this complaint. It is contended that allegations made in the complaint are false, vexatious and derogatory. There is no substance in the allegations made against Opposite Party No.3. Further there is no cause of action against Opposite Party No.3.
8) According to Opposite Party No.3, Opposite Party No.3 is not aware about the service and nature of work which the Complainant involved into. Opposite Party No.3 is an individual and not a store. Opposite Party No.3 has to offer no comments as record complaint para no.3. However, it is submitted by Opposite Party No.3 that he has not received any reminder letter or notice from the Complainant. According to the Opposite Party No.3, complaint against Opposite Party No.3 deserves to be dismissed with cost.
9) The Complainant has filed rejoinder and thereby denied the allegations made in the written statement of Opposite Party No.3. The Complainant has filed written argument. Opposite Party No.3 has also filed written argument. A heard oral submission of the Complainant and Ld.Advocate Mrs. Priyanka Dawda for the Opposite Party No.3 and the complaint was closed for order.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled to recover total Rs.95,000/- from Opposite Party as prayed for ?
Findings : As per final order.
Reasons :-
Point No.1 :- It is the case of the Complainant that on 16/11/08 he purchased cell phone manufactured by Opposite Party No.1 Company from Opposite Party No.3 Mobile Store for Rs.9999.01 paise. The Complainant has produced tax invoice of purchase of cell phone. It appears from the contents of the tax invoice that Complainant has purchased 000018420 HTC P3400i black IMEI 353633011798306 from Mobile Store, Malad (E) for Rs.9,999.01. Mr. Nazim Mohammed who has appeared on behalf of Opposite Party No.3 has filed written statement and raised contention that he is employee of the Company. Cell phone was purchased by the Complainant from Mobile Store. Opposite Party No.3 has filed written statement and thereby resisted Complainant’s claim. Therefore, he cannot avoid his liability by alleging that he is merely employee in the Company. Opposite Party No.3 has not disputed the fact that on 16/11/08 the Complainant purchased cell phone mentioned in the complaint from Opposite Party No.3. According to the Complainant, he is serving in the Naval Dockyard, Mumbai. He purchased Cell Phone on the recommendation of sales person in Mobile Store – Opposite Party No.3 with intention to use net and track Stock Market. After purchase of cell phone, on 18/11/08 he requested for activation of GPRS. However, due to defect in the cell phone the same could not be activated. He repeatedly requested Opposite Party No.2, Authorized Service Centre of Opposite Party No.1 to make phone operational but his phone was not made operational. On 29/01/09 Opposite Party No.2 accepted his cell phone for repair and returned cell phone to him on 09/02/09. The Complainant has produced job card dtd.29/01/09 issued by Opposite Party No.2 – Salora International Ltd. Problems reported were – “touch screen not working, problem sub to be check data will be erased”. After repair cell phone was returned to the Complainant on 09/02/09. According to the Complainant, even after repair GPRS was not properly operational. Therefore, again he requested Opposite Party No.2 to make cell phone operational. On 20/06/09 he handed over cell phone to Opposite Party No.2 for repair. After repair, cell phone was returned to the Complainant on 08/07/09. The Complainant has produced job card dtd.20/06/09 issued by Opposite Party No.2. Problem reported by the Complainant are stated in the job card are as under –
“i) Air cell, Reliance Trump not accepting. ii) Search on display. iii) Alphabet should red Color (due to the scratches data will be erased).” According to the Complainant even after repair his cell phone was not working properly. Due to the continuous problem he was frustrated and so by letter dtd.24/08/09 addressed to Opposite Party No.1 & 2 he demanded his money back and asked them to take their cell phone back. It is contended that during that period, Opposite Party No.3 – Mobile Store was closed down permanently and so he could not sent letter to Opposite Party No.3. According to the Complainant Opposite Party No.1 & 2 did not comply with the letter on 24/09/09. He sent reminder to Opposite Party No.1 & 2 and requested to refund his money. According to the Complainant, after his repeated request, Opposite Party No.2 approached him and offered to repair the cell phone. As the Complainant was already frustrated and lost his theft, he refused offer of replacement of cell phone and asked Opposite Party to refund price of his cell phone. From time to time employee by name Ms. Choudary, Mr. Umesh, Mr. Ratan gave same offer of replacement of the cell phone but they refused to refund money. Therefore, Complainant has filed this complaint. The Complainant has produced on record copies of reminders sent to the Opposite Party No.1 & 2. Inspite of service of notice Opposite Party No.1 & 2 have not appeared before this Forum. The Complainant’s version that since, purchase of cell phone, it was not working properly. It appears from the documentary evidence that twice he had given cell phone to Opposite Party No.2 – authorized service centre of Opposite Party No.1. It appears from the contents of job card issued by Opposite Party No.2 that there were major problem in the functioning of the cell phone. According to the Complainant, there are manufacturing defect in the said cell phone. Since beginning cell phone was not working properly and he cannot use cell phone for the purpose for which he had purchased it. Opposite Party No.3 has pleaded ignorance about working of the cell phone. The Complainant’s version that the cell phone since beginning was not working properly due to the manufacturing defect is remained unchallenged. In the reminder letters sent by the Complainant, he had made complaint about defects in cell phone to the Opposite Party No.1 & 2 and asked to refund purchase price of the said cell phone. The Complainant’s version that Opposite Party No.1 had given offer of replacement of cell phone is also remained unchallenged. According to the Complainant as per the recommendation of the salesman of Opposite Party No.3, he purchased said cell phone. It appears that Opposite Party No.3 sold defective piece of cell phone to the Complainant. Considering the aforesaid facts, we hold that Complainant has proved deficiency in service on the part of Opposite Party No.1 to 3. In the result we answer point no.1 in the affirmative.
Point No.2 : On 10/11/06 the Complainant has purchased cell phone manufactured by Opposite Party No.1 Company for Rs.9999.01 paise from Opposite Party No.3. It appears that since beginning due to the manufacturing defect the cell phone was giving continuous trouble and was not working properly. Opposite Party No.2 could not properly repair the said cell phone. Therefore, the Complainant had requested Opposite Parties to refund purchase price of the said cell phone. Considering the facts and circumstances of the case we think it just to direct Opposite Parties to pay Rs.9,999/- price of the said cell phone to the Complainant.
The Complainant has claimed Rs.75,000/- towards the cost and expenses incurred by him and for mental agony and physical harassment from the Opposite Parties. The Complainant has claimed exorbitant amount of Rs.75,000/- as compensation. The Complainant has not adduced any evidence to support his claim for Rs.75,000/-. We think it just to direct Opposite Parties to pay Rs.4,000/- as compensation to the Complainant.
The Complainant has also claimed Rs.10,000/- towards cost of this complaint. Considering the nature of this proceeding, we think it just to direct Opposite Parties to pay Rs.1,000/- as cost of this complaint to the Complainant. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, we pass the following order -
O R D E R
i. Complaint No.35/2010 is partly allowed.
ii. Opposite Party No.1 to 3 shall jointly and/or severally pay an amount of Rs.9,999/- (Rs. Nine Thousand Nine
Hundred Ninety Nine Only) to the Complainant towards price of cell phone.
iii. Opposite Party No.1 to 3 shall jointly and/or severally pay an amount of Rs.4,000/-(Rs. Four Thousand Only) as compensation for mental agony and Rs.1,000/- (Rs. One Thousand Only) towards cost of this proceeding to the Complainant
iv. Opposite Party No.1 to 3 shall jointly and/or severally comply with the aforesaid order within period of 30 days from
the date of receipt of this order.
v. Opposite Parties are entitle to take back cell phone mentioned in the complaint from the Complainant
within 1 month from the date of payment of aforesaid amount.
vi. Certified copies of this order be furnished to the parties.
