Sri Shyamal Gupta, Member
This Appeal has been filed challenging the Order dated 14-03-2017 of the Ld. District Forum, Kolkata-I (North) passed in CC/126/2015, whereby the complaint has been dismissed.
The grievance of the Appellant against the Respondents is that notwithstanding the Respondent No. 3 failed to repair the mobile handset under the warranty period, the Respondents refused to replace the same and instead asked her to buy another new handset at a discounted price which was not acceptable to her. As the Respondents did not redress her grievance properly, feeling dejected, she filed the complaint case. However, the same being dismissed by the Ld. District Forum, this Appeal was moved.
Neither of the Respondents turned up either before the Ld. District Forum or this Commission despite due service of notice upon them. Accordingly, the Appeal was heard ex parte.
It appeared from the communiqué of the Respondent No. 1 to the Ld. Advocate of the Appellant dated 06-05-2014 that on due examination, it was found by the Respondent No. 3 that the damage to the handset caused due to external cause of liquid ingression. As this service was not covered under warranty, the Respondent No. 1 refused to oblige the Appellant by replacing the damaged handset with a new handset.
It appears from the photocopy of Cash Memo/Invoice dated 10-04-2014 that the handset was delivered to the service centre by the Appellant on 30-03-2014. In case, it was indeed a case of external liquid ingression, the same would definitely not escape the watchful eye of expert technicians of the service centre and in that case the service centre people would definitely make due note of the same in the acknowledgement copy being issued to the Appellant. However, no such document is forthcoming before us to convince on this vital aspect. As the concerned acknowledgement copy was taken back by the Respondent No. 3 on 10-04-2014 while returning the handset to the Appellant, it was not possible for the latter to place it before the Ld. District Forum. It is noteworthy here that, in its above mentioned letter the Respondent No. 1 candidly admitted that the handset was delivered with symptom ‘no power’. There was no mention of any other symptom.
Given that the Respondent No. 1 claimed that the handset got damaged owing to external liquid ingression, in such a scenario, the burden of proving such fact was upon it. However, it made no concerted effort to prove the same. Mere allegation proves nothing and therefore, we refuse to place any importance to such allegation of the Respondent No. 1; particularly when the handset was stated to be water resistant.
It was also noticed that the Respondent No. 3 charged Rs. 100/- to the Appellant as labour fee although the problem cropped up within the warranty period. Under the warranty clause, it was obligatory on the part of the Respondent No. 3 to provide free service. There being nothing to show that the nature of damage was beyond the scope of warranty, we hold the Respondent No. 3 guilty of indulging in unfair trade practice.
As for the offer of the Respondent No. 1 to provide a new handset at a discounted price, it was the sole discretion of the Appellant to either accept it or refuse such offer. As it appears, the Appellant opted for the latter. So be it, we must honour her choice.
Considering all these aspects, we are inclined to allow this Appeal.
Hence,
O R D E R E D
The Appeal stands allowed ex parte against the Respondents. The subject handset should either be replaced by the Respondents with another handset of similar specification with 1 year comprehensive warranty or refund the price of the handset to the Appellant. The Respondents shall also pay Rs. 15,000/- and Rs. 10,000/- as compensation and litigation cost, respectively. Non-compliance of this order in toto within 40 days from today shall entail payment of simple interest @ 9% p.a. over the cost of the subject handset for the entire period of default to the Appellant by the Respondents. The impugned order is hereby set aside.
