Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 180.
Instituted on : 14.05.2014.
Decided on : 13.05.2016.
Bijender son of Shri Umed Singh r/o V.P.O.Brahmanwas Tehsil and District Rohtak.
………..Complainant.
Vs.
- Spice Mobility Limited, Global Knowledge Park, 19 A & 19B II nd Floor, Sector-125, Noida-201301 (U.P).
- M/s Spice Retail Ltd. Shop No.B-111, 133, Gohana Stand, Opp. Malik Medicos, Rohtak through its Prop./Partner.
- Authorized Service Centre, For Spice Mobility Limited, Radhe Radhe Communication,18-A, First Floor Gopal Complex, Chhotu Ram Chowk, Rohtak .
……….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.Surender Singh Advocate for complainant.
Sh. Kunal Juneja Advocate for opposite party No.1.
Opposite party no.2 given up.
Opposite party no.3 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 on 21.07.2013 from opposite party no.2 vide Bill/Retail Invoice no.5657 dated 21.07.2013 for Rs.8000/-. It is averred that from the very beginning of purchase the said mobile was giving problems and is not functioning properly. It is averred that complainant visited the opposite party no.2 to get it repaired and opposite party advised the complainant to visit authorized service centre of the company i.e. opposite party no.3. It is averred that opposite party no.3 checked the mobile and told the touch pad of mobile is broken and after repairing the same charged Rs.1500/- as service charges vide invoice no.158 dated 28.12.2013. It is averred that after some time the said mobile was giving again problems and complainant again visited the opposite party No.3 on 27.01.2014, 14.02.2014 and 19.02.2014 and requested them to get it repair and opposite party No.3 told that the said mobile is defected and not repairable. It is averred that complainant requested the opposite party either to replace the mobile set or to give its price back but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to replace the mobile set with a new one or 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. Opposite party no.3 did not appear despite service and as such opposite party no.3 was proceeded against exparte vide order dated 15.07.2014 of this Forum. Opposite party no. 2 was given up by the complainant being unnecessary party. However opposite party no.1 appeared and filed its written statement submitting therein that it is admitted that as per warranty scheme of company we provide a one year warranty with each and every new genuine handset subject to production of valid invoice. It is averred that the company is liable only when there is irreparable defects in the handset. It is averred that complainant approached to ASC twice but he didn’t attach single job sheet which assists his allegations that he approached to the ASC for rectification of defects in the handset. It is averred that complainant has failed to prove any deficiency in service on the part of opposite party. As such it is prayed that the present complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C4 and has closed his evidence. On the other hand, ld. Counsel for the opposite party no.1 made a statement that the written statement filed on its behalf be read in evidence.
5. We have heard ld. Counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that as per invoice Ex.C3 the complainant had purchased the mobile set on 21.07.2013 for a sum of Rs.8000/- of Spice Company from opposite party no.2. It is also not disputed that as per Service/Sale Invoice Ex.C4 dated 28.12.2013, opposite party no.3 i.e. Service Centre of the company had charged Rs.1500/- on account of touchpad broken. As per the complaint and affidavit filed by the complainant even after repair of touch pad the set in question was not working properly and same could not be repaired by the opposite parties in warranty period. Complainant also served a legal notice Ex.C1 to the opposite parties but the same was not replied.
7. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 21.07.2013 and the defect in the mobile set appeared during the warranty period and the same could not be repaired/replaced by the opposite parties during the warranty period. In this regard reliance has been placed upon the law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. It is also on record that opposite party no.3 did not appear despite notice and as such it is presumed that opposite party no.3 has nothing to say in the matter and as such all the allegations leveled by the complainant against the opposite party no.3 regarding approaching the opposite party no.3 for repair of his defective mobile set stands proved. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified.
8. In view of the facts and circumstances of the case, it is observed that the manufacturer is liable to refund the price of mobile set. As such it is directed opposite party No.1 i.e. manufacturer shall refund the price of mobile set i.e Rs.8000/-(Rupees eight thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 14.05.2014 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision. The set in question is with the complainant hence the complainant is directed to hand over the set in question to the opposite parties. Complaint is allowed 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:
13.05.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
