DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 54/18
Shri Rajesh Kumar
S/o Shri Hardayal
R/o C-167, Shyam Fali
Nanak Chand Basti
Kotla Mubarkpur
New Delhi-110003. .…Complainant
VERSUS
Spice Retail Ltd.
Through the Manager
Spice Retail Ltd.
G-20, South Ext. Part-1
New Delhi-110049.
Spice Retail Ltd.
Through ‘Wecare’
Global Knowledge Part
Plot No.19A & 19B
Sector-125, NOIDA (U.P.)
Nokia India Sales Pvt. Ltd.
Through the Manager
Regd. Office, Flat No.1204
12th Floor, Kailash Building
Kasturba Gandhi Marg
New Delhi-110001. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 20.02.2018
Date of Order :02.12.2022
Member: Shri U.K.Tyagi
Complainant has requested to pass an award directing Spice Retail Ltd. Spice Retail Ltd.-We Care & Nokia India Pvt. Ltd. etc. (hereinafter referred to as OP-1, 2 & 3 respectively (i) to refund a sum of Rs. 49,549/- as cost of mobile phone alongwith interest @ 24% per annum from the date of purchase; (ii) to pay 800/- for screen guard, Rs.1,00,000/- as compensation for mental harassment; (iii) to pay Rs. 30,000/- as litigation charges etc. .
Brief facts of the case are as under:-
The complainant purchased a mobile phone “Sony Xperia Z2 D6502 White” for Rs.49,549/-. One side seal was found missing. It was pointed out to the salesman. He was assured by the salesman that if any defect is found, they will replace the said phone with new one. The complainant was not having full payment. On this, Manager and salesman told him that they can arrange finance with bajaj Finance Co. The complainant made the payment of Rs. 16,884/- by the debit card and balance of Rs.32,665/- was arranged from Bajaj Finance Co.
On reaching home, the complainant tried to operate the system. The complainant opened camera for video–recording and found that video-recording had switched off automatically. He tried many a time but the same problem persists. On next day, the complainant reached at M/s Spice Retail Ltd. and complained about the said mobile phone. On checking, the salesman did some setting. The mobile phone was returned to him. On reaching home, the same problem of video-recording was noticed. He again visited the show-room M/s Spice retail Ltd. and complained about the default. The salesman again had done some setting and handed over to him. On reaching home, he tried but default remained as such. This process continued for 10 days. On 11th day, on reaching said shop, he was told to visit “Sony Service Centre” for any complaint. On reaching Sony Service Centre, he was asked to deposit the set but complainant was hesitant to deposit for repairing. On 17.08.2014, the complainant again visited Sony Service Centre. The Mobile phone was updated and same was handed over to the complainant within two hours. On reaching home, it was noticed that same default persisted. He visited the Spice Retail Ltd. and complained about the default in mobile and also enquired about replacement period. The Manager asked him to sell the said set for Rs.20,000/-. He refused to sell. On 16.04.2015, the complainant visited “Sony Service Centre” for repair. He got deposited the said phone for repair and Job-sheet was provided to him and delivery date was given 21.04.2015. (The copy of said job sheet is annexed as Annexure – C-2). On 21.04.2015, he checked the phone and it was OK and was issued invoice copy dated 21.04.2015. The same is annexed as Annexure-C-3. On reaching home, the same problem persisted. On 16.06.2015, he again visited Sony Service Centre and the mobile phone was got deposited and job-sheet was issued and delivery date was given 29.06.2015.
On 29.06.2015, he reached the Centre. The phone was checked and found OK. The copy of invoice was issued and annexed as Annexure-C/4. In the absence of solution, the complainant contacted “We care” Noida. No step was taken to solve the problem by the “We care”. In the above process, the complainant was harassed. On 13.07.2015, the complainant got the Legal Notice served upon OPs. Again legal Notice was sent through his advocate on 12.08.2015. The complainant also withdrew the complaint on technical grounds on 16.01.2018.
OPs, on the other hand, filed reply and raised some preliminary objections stating that the said complaint was filed almost after 3 years from the last cause of action. The complainant approached the Centre on 19.06.2015 with the issue of hanging and heating of the said mobile handset and the issue was resolved. The complaint should have been filed within two years but it took 3 years which is beyond the limitation period. The complainant brought to notice of the OPs of “Camera Auto Off”. The same was updated and problem was resolved. The problem of “Heating” of said handset was resolved by replacing the handset. The complainant last visited to centre on 19.06.2015. He never raised any issue in handset. This clearly shows that there was no problem with handset during last 3 years. It was averred by OPs that the complainant had not submitted any documents related to defect in handset and did not prove any manufacturing defect in said handset. The factum of this case, as maintained by OPs, was covered by the observation of Hon’ble National Commission in Punjab Tractors Ltd. Vs. Vir Pratap (1997) 11 CPJ 81 (NC) wherein it was held that when the complaints of the complainant were attended to promptly and reliable evidence was produced by OP in support of his case. In such circumstances the complainant is not entitled any relief. In another case, the Hon’ble National State Commission in Sabeena Cycle Emporium Chennakhaada Vs. Thajes Ravi Air – PO (1992) CPJ 97, held that the forums is bound to determine the fact on the basis of clear evidences by way of expert opinion. The said proposition had been adopted by many State Commission as well as Higher courts.
This Commission has gone into the entire material placed on record and due consideration was given to the arguments. It was noticed as contended by complainant that the mobile set in question could not be repaired to make it functional. Many times, the complainant visited the M/s Spice Retail Ltd. to get it repaired. In the process, the complainant got frustrated but the defect in mobile-set could not be removed. However, the OP maintained that the defect of “Camera Auto off” was updated and problem remained resolved. The problem of “heating of said handset” was resolved by replacing the handset. Further, it was contended that no document was submitted by complainant to prove his contention as mentioned in his complaint. He also could not prove any manufacturing defect in the said mobile set. The OP also mentioned few cases of Hon’ble National Commission. The facts of those cases do not seem to have any similarity with this case. Hence the ratio of these judgment do not have any impact in the case.
The Commission does feel that considering the value of the mobile set, there is no requirement of expert-report in this case.
The complainant knocked the door of the all the three OPs mentioned here but no solution was provided by them. The problem was fixed temporarily for few hours only. As such, the Ops did not take any steps, at any point of time to address the issues which vividly establishes that there was deficiency in service and negligence on the part of OPs. Therefore, OP Company owe the obligation to repay adequately.
As regards to the preliminary objection of filing the complaint after 3 years. The complainant has clearly mentioned that the complaint was withdrawn with the permission of this Forum with the liberty to file afresh complaint. The Forum vide its order dated 19.07.2018 ordered as under :-
On perusal of the original complaint No.256/15 filed on 22.09.2015, it is observed that the complainant initially filed a complaint regarding two mobile phones. Later on, he filed amended memo or parties wherein the complainant impleaded two manufacturers as necessary parties.
In between, he withdrew the complaint with liberty to file fresh complaints of the two mobile phone. The cause of action being continuous. Application for condonation of delay is not required/ infructuous. The same stands dismissed. List on 09.08.2012.
In view of this, the issue of time-barred does not hold good.
In a nutshell, after having considered the facts and circumstances, this Commission is of the considered opinion that the OP shall pay the amount of Rs.49,549/- alongwith interest @6% per annum till its realisation, and Rs.10,000/-towards compensation and litigation charges within 3 months from the receipt of this order failing which rate of interest shall be levied @9% per annum on the entire amount of Rs.49,549/-till its realization.
File be consigned to the record room and order be uploaded on the website
