JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the majority order dated 19.10.2010, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh(hereinafter to be referred as the Forum only), vide which the Opposite Parties, one of which is (now appellant) were directed to refund the price of the handset i.e. Rs.3150/-, to the complainant (now respondent No.1) ; to pay compensation in the sum of Rs.10,000/-,for causing harassment, mental agony and pain to the complainant, for a period of more than 18 months ; and also to pay a sum of Rs.7000/-, as costs of the litigation. The order was directed to be complied with, within a period of 30 days of the receipt of its certified copy, failing which the Opposite Parties were made to pay an amount of Rs.13,150/- alongwith interest @ 18% p.a. ,from the date of purchase of the set i.e. 15.4.2009 till the date of realization, besides paying the costs of litigation of Rs.7000/-. However, one of the Hon’ble Members, Mrs.Madhu Mutneja rendered dissenting order dated 21.10.2010, holding that in her opinion, the maximum compensation which could be granted, should be Rs.2000/-, alongwith the costs of the handset, and in the event of non-payment of the amount within 30 days, the OPs were to pay interest @ 12@ p.a. 2. On 15.4.2009, the complainant purchased a Vodafone Magic Set, from OP No.2 for a sum of Rs.3150/-, with a guarantee of six months. The phone was activated and started its functioning through No.9988616665. A few days after its purchase, the set started giving trouble. Ultimately, the Complainant took the same to OP No.2. On 24.06.2009, OP-2 got its charger replaced through Voda Store. However, the set again did not work properly. Thereafter, on 21.07.2009, OP-2 changed the battery. Since, the set had a manufacturing defect, OP No.2 replaced the entire set with a second hand set on 28.07.2009, saying that the instrument was a new one. It was further stated that the replaced set was also not in working condition. The complainant sent a legal notice and also approached the OPs repeatedly to provide her a new hand set, but neither the handset was replaced, with a new one, nor the same was repaired. It was further stated that the complainant suffered mental agony and physical pain, because of the harassment and attitude of the OPs. Left with no other alternative, a complaint under the Consumer Protection Act(hereinafter to be referred as the Act only), was filed. 3. In reply, OP No.1 pleaded that the complaint was not maintainable. It was further pleaded that OP No.1 was not responsible as the set had been manufactured by Hutchison Max Paging Ltd. and not by it. It was further pleaded that the handset provided by the OPs under a scheme, may be faulty to some extent. It was stated that no expert evidence was produced by the complainant, to prove, that there was any manufacturing defect, in the handset, or that the same had not been mishandled or misused by her. 4. OP-2, in its reply, pleaded that since, the complainant had purchased a Vodafone Magic Set from him, if there was any manufacturing defect, the manufacturing company was responsible, for replacement of the same or repair thereof, as per the terms and conditions of the warranty. It was further stated that OP No.2, being a trustworthy seller, tried to help the Complainant to get replacement of the charger and battery, through Voldafone Store, and later on, the set itself. The remaining averments were denied, being wrong. 5. After hearing Counsel for the parties, and, on going through the evidence, on record, the Forum, vide its majority judgment, dated 19.10.2010, accepted the complaint, in the manner, referred to, in the opening para of the judgment. 6. Feeling aggrieved, the instant appeal, was filed by OP No.1/appellant. 7. We have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 8. The Counsel for the appellant, at the very outset, submitted that OP NO.2 supplied the Vodafone handset, to the complainant, whereas the same was manufactured by Hutchison Max Paging Ltd. He further submitted that, if there was any manufacturing defect, then the manufacturer was responsible, which was not made a party, and, as such, the complaint was not maintainable. The contention of the Counsel for the appellant, does not appear to be correct. The handset, aforesaid, was purchased by the complainant from OP No.2, with a warranty of six months. There was, therefore, privity of contract, between the complainant and the OPs. There was no privity of contract, between the complainant and the manufacturer. Under these circumstances, the manufacturer was not a necessary party, in the instant case. Since, the OPs were deficient, in rendering the service, from whom the handset was purchased, the complainant could claim the relief against them, as per the provisions of the Act, being a Consumer, and they(OPs), being Service Provider. The contention of the learned Counsel for the appellant, being without substance the same is rejected. 9. There is, no dispute, about the factum, that the Vodafone set, which was purchased by the complainant, right from the very beginning, started giving trouble. She took the same to the OPs, again and again. In the first instance, its charger and battery were changed but when, the set did not become trouble free, it was replaced with a second hand set, and not with a new one. The complainant had to approach the OPs again and again for the purpose of removal of defect in the handset, but they were unsuccessful, to provide her a trouble- free new handset. If the consumer after purchasing, the goods from the service providers, finds defects therein and has to again and again approach them(service providers) for repair or replacement thereof, one can well imagine the plight of such a person . By providing, in the first instance, a defective Vodafone handset, and thereafter, replacing the same, with a second hand handset which also did not work well, the OPs were definitely deficient, in rendering service to the complainant. 10. The next question, that arises for consideration is, as to which relief, the complainant was entitled to. Since, the original purchased handset and the replaced set, never remained trouble free, the complainant was certainly entitled to the refund of the price of the handset. She was also entitled to the compensation for causing harassment to her, which resulted into physical pain and mental agony for a long time. However, it is to be determined, as to whether, the compensation granted by the Forum was reasonable or highly excessive. The object of the Act is not to enrich the Consumer, at the cost of the Service Provider. The compensation, for harassment, mental agony and physical pain suffered by the Consumer, at the hands of the Service Provider, should neither be too excessive, nor too meager. In the instant case, in the majority judgment, the Forum granted compensation of Rs.10,000/-, though the price of the Vodafone handset was Rs.3150/-. In Maula Bux Vs Union of India(1969) 2 SCC 554 :AIR 1970 SC 1955, the principle of law, laid down, was to the effect that the Court is competent to award reasonable compensation, in case of breach, even if, no actual damage is proved to have been suffered, in consequence of the breach of the contract. In McDermott International Inc. Vs Burn Standard Co. Ltd.(2006)II SCC 181, the principle of law, laid down, was to the effect that the Court must consider only strict obligations and not the expectations, however, reasonable, of one contractor that the other will do something that he has assumed no legal obligation to do. In R.K.Malik and another Vs Kiran Pal and others,(2009)14 SCC1, the principle of law, laid down, was to the effect that, undoubtedly, the compensation, in law, is paid to restore the person, who has suffered damage or loss, in the same position, if the tortuous act or the breach of contract had not been committed. The law requires that the party suffering should be put, in the same position, if the contract had been performed or the wrong had not been committed. The law, in all such matters, requires payment of adequate, reasonable and just monetary compensation. Keeping in view the principle of law, laid down, in the aforesaid cases, we are of the considered opinion that, the compensation of Rs.10,000/-, awarded by the District Forum, was highly excessive, and the same deserves to be reduced. In our considered opinion, the compensation in the sum of Rs.3000/-, for causing physical harassment and mental agony to the complainant, would be adequate and reasonable. The order of the District Forum, in this regard, deserves to be modified. 11. The District Forum awarded costs to the tune of Rs.7,000/-. This amount is highly excessive. The District Forum, it appears, lost sight of the fact that the price of the Vodafone handset was Rs.3150/- only. No doubt, the complainant has been unnecessarily dragged to the arena of litigation by the act and conduct of the OPs. The litigation costs if reduced to Rs.2000/-, in our considered opinion, would be adequate and reasonable. The order of the District Forum, to this extent, deserves to be modified. 12. For the reasons recorded above, the appeal is partly accepted with no order as to costs, by modifying the order of the District Forum, as under ; (i) The order of the Forum regarding the refund of the price of the handset of Rs.3150/- ,to the complainant, is upheld. However, the complainant shall return the handset to the OPs, within 30 days, from the date of receipt of the certified copy of the order. (ii) The order of the Forum awarding compensation, in the sum of Rs.10,000/-, is modified. The OPs shall now be liable to pay compensation to the tune of Rs.3,000/-, instead of Rs.10,000/-, awarded by the Forum, for causing mental agony and harassment to the complainant. (iii) The OPs shall also pay a sum of Rs.2,000/- as litigation costs, instead of Rs.7,000/-, awarded by the Forum. (iv) The aforesaid order be complied with, within 30 days of the receipt of its certified copy, failing which, the OPs shall be liable to pay the amount of Rs.6150/- (price of the handset plus compensation), alongwith interest @ 12% p.a., from the date of purchase of the handset, till the date of realization, besides cost of litigation to the tune of Rs.2000/- as indicated above. 13. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
