Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 54.
Instituted on : 18.01.2016.
Decided on : 21.07.2017.
Mohit(minor) s/o Phool Kanwar through his father natural guardian of minor R/o Village Ladhot Tehsil and District Rohtak.
………..Complainant.
Vs.
- Sikka Teleconnect, Shop no.1126, Near Peer Baba, Chhotu Ram Chowk, Rohtak Tehsil and District Rohtak through its Proprietor/Dealer.
- Jai Maa Enterprises, Shop No.977/22, 1st Floor, Opp. Rohtak Central Co-operative Bank, Near Pizza Hut, Medical Road, Rohtak, Tehsil and District Rohtak through its proprietor.
- Panasonic India Pvt. Ltd., 12th Floor, Ambience tower, Gurgaon, Tehsil and District Gurgaon through its authorized person.
……….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.M.S.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 set on dated 24.04.2015 for a sum of Rs.11500/- from the opposite party No.1 who is authorized dealer of opposite party No.3. It is averred that the alleged mobile set became dead and stopped working properly and complainant contacted the opposite party No.2 i.e. Service Centre who kept the mobile on dated 09.10.2015 but after some days it was told by opposite party no.2 that there was some manufacturing defect in the mobile and they will send the same to the company for replacement. Since then, the mobile in question is in the custody of opposite party No.2. It is averred that the act of opposite parties of not replacing the mobile set 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 party No.1 & 2 received back duly served and notice was sent to opposite party no.3 through registered post but none appeared on behalf of opposite parties and as such opposite party no.1 to 3 were proceeded against exparte vide order dated 01.03.2016 of this Forum. However opposite party no.3 put up in appearance on 12.04.2016 and exparte order against opposite party no.3 was set aside. Opposite party No.3 filed its reply submitting therein that complainant never installed antivirus in his phone also phone is used by a minor which is the main reason of malfunctioning. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs. However opposite party no.3 was again proceeded against exparte vide order dated 03.07.2017 of this Forum.
3. Complainant led evidence in support of their case.
4. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C2 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 24.04.2015, complainant had purchased the mobile set for a sum of Rs.11500/-. It is also not disputed that as per job sheet Ex.C2 dated 09.10.2015, there was problem of hang of phone and as per version of complainant thereafter the phone is in the custody of opposite party no.2 and has not been repaired. On the other hand opposite party no.3 in it reply has submitted that the phone was not used properly and no antivirus was installed by the complainant in his phone.
7. After going through the file and hearing the parties it is observed that the mobile set was purchased by the complainant on 24.04.2015 and the defect appeared on 09.10.2015 i.e. within 6 months of purchase and the same could not be repaired by the opposite parties within warranty period and the same has not been returned to the complainant till date after repair which shows that there is some manufacturing defect in the mobile set. However opposite parties has not placed on record any document to prove that the phone was not used properly. 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 6 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 20% is justified. The mobile in question is already in the possession of service centre.
8. In these circumstances, it is observed that opposite party No.3 i.e. manufacturer shall pay the price of mobile set after deduction of 20% amount of Rs.11500/- i.e. to pay Rs.9200/-(Rupees nine thousand two hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 18.01.2016 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 interest @ 12% p.a. from the date of order. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
21.07.2017.
................................................
Joginder Kumar Jakhar, President
....................................
Komal Khanna, Member.
……………………………..
Ved Pal, Member
