Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 56.
Instituted on : 23.01.2017.
Decided on : 07.07.2017.
Manish Praksah Verma aged 32 years s/o Sh. Pawan Prakash Verma R/o H.No,745, Sec-1, Rohtak.
………..Complainant.
Vs.
- Sikka Teleconnect near peer Baba, Shop no.1126, Chhotu Ram chowk, Rothak through its proprietor.
- Khushi Communication Service Centre Jionee Mobile 1st Floor, Narayan Complex, Chottu Ram Chowk, Rohtak through its proprietor.
- Gionee Head quarter (Head office)Syntech Technology Pvt. Ltd., F-2, Block No.B-1, Ground Mathura Road, Delhi -110044 through its Representative/Manager.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Manish Verma, Advocate for the complainant.
Opposite parties exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Mobile phone bearing IMEI No.868702026100497 from the opposite party No.1 for a sum of Rs.17000/- vide bill No.6245 dated 21.012016. It is averred that from the very beginning of purchase of mobile it is not working properly and is having network service failure including call drop, not working in roaming and automatic on/off and software problem also. The phone was deposited by the complainant on dated 14.12.2016 to the service centre of opposite party no.2. But the same problem occurred again on 07.01.2017 and the opposite party issued a job sheet No.GC1710037175. It is averred that till date the mobile is not working correctly and the defect is not rectified within warranty period. As such it is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to refund the price of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties. Notice sent to opposite party no.1 & 2 received back duly served and notice sent to opposite party no.3 through registered post not received back and none appeared on behalf of opposite parties and as such opposite party no.1 to 3 were proceeded against exparte vide order dated 09.03.2017 of this Forum.
3. Complainant led evidence in support of his case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C6 and has closed his evidence.
5. We have heard ld. counsel for the complainant and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that as per bill Ex.C1 dated 21.01.2016 the complainant had purchased the mobile set for a sum of Rs.17000/-. The contention of ld. counsel for the complainant is that the handset in question was defective from the very beginning and the same could not be repaired by the opposite parties despite his repeated requests during the warranty period. To prove his case complainant has placed on record copy of job sheets and customer information slips Ex.C2 to Ex.C5. As per slip Ex.C3 & Ex.C4 dated 14.12.2016 and dated 01.01.2017 respectively, there was problem of Restart, battery not charge internet always on, auto close of call etc. However job sheets Ex.C2 and Ex.C5 are not visible. But the mobile could not be repaired by the opposite parties within warranty period.
7. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 21.01.2016 and the defect in the mobile set appeared on 14.12.2016 i.e. after about 11 months. As per complaint, affidavit and documents placed on record, the mobile set could not be repaired by the opposite parties despite repeated complaints by the complainant during the warranty period. It is also on record that opposite parties did not appear despite service and as such it is presumed that opposite parties have nothing to say in the matter and all the allegations leveled by the complainant against the opposite parties regarding defect in the mobile set stands proved. In this regard reliance has been placed upon the law cited in III(2008)CPJ 98 titled Pahnawa Boutique & Anr. Vs. Shaifi Verma Hon’ble Haryana State Commission, Panchkula has held that: “Complaint fully supported by affidavit-No basis to reject complainant’s version-O.P.failed to contest proceedings despite notice-Order of Forum allowing the ex-parte complaint upheld”, as per 1998(3)CCC 65(P & H) Hon’ble Punjab & Haryana High Court in Sardari Lal Vs. Kartar Singh & Ors. has held that: Non-appearance of a party as a witness in the suit-Gives rise to a strong presumption against him”, as per II (2009) CPJ 240 titled as Jagdish Prasad Khandelwal vs. Partap Chandra Behera & Ors., Hon’ble Orissa State Commission, Cuttak has held that: “Dealer-Liability-Manufacturing defect-dealer requested manufacturer to replace effective goods having sufficient discharged his responsibility, dealer, cannot be made liable for deficiency in service order against dealer set aside in appeal-manufacturer alone held liable to replace defective goods or to refund price thereof”. However as the defect was appeared after 11 months of its purchase, the complainant is entitled for refund of price after deduction of some depreciation on it as is held by Hon’ble State Commission, Panchkula(Haryana) in Appeal no.460 of 2014 titled as Deepjot Singh Thukral Vs. The Mobile Store & Others, vide which Hon’ble State Commission, has directed the opposite parties to pay the cost of the mobile phone amounting to Rs.12911/- after deducting 30% depreciation value of the mobile set alongwith interest @ 9% per annum from the date of filing till its realization”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price after deducting the depreciation of 50% is justified. As per statement dated 09.05.2017, the mobile in question in the possession of complainant..
8. In these circumstances, it is observed that complainant shall hand over the mobile in question to the opposite parties and in turn opposite party No.3 i.e. manufacturer shall pay the price of mobile set after deduction of 50% amount of Rs.17000/- i.e.8500/-(Rupees eight thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 23.01.2017 till its realization and shall also pay a sum of Rs.2500/-(Rupees two thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. Complaint is disposed of accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.07.2017.
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Joginder Kumar Jakhar, President
……………………………..
Komal Khanna, Member
…………………………….
Ved Pal, Member.
