Consumer Complaint No. 171 of 2016
Date of filing: 27.9.2016 Date of disposal: 31.8.2017
Complainant: Subenkar Bhowmick, S/o. Sri Lalmohan Bhowmick, resident of Vill. & PO: Nandai, PS; Kalna, Dist: Burdwan, PIN – 713 405.
Opposite Party: 1. Shree Ganesh Enterprise, having its office at Samudragarh Rail Bazar, Nasratpur, PS: Nadanghat, Dist: Burdwan, PIN – 713 519, represented by its Proprietor.
2. M.A. Solution, Authorized Servicing Centre of Lenovo, having its office at 620, G. T. Road, Srirampur, Battala, PS: Srirampur, Dist: Hooghly, PIN – 712 201, represented by its Service-in-Charge.
Hon’ble President: Smt. Jayanti Maitra (Roy).
Hon’ble mamber: Sri Pankaj Kumar Sinha.
Hon’ble Member: Smt. Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party: Ld. Advocate, Sanyuk Banerjee.
Appeared for the Opposite Party: Ld. Advocate, Samojit Mitra.
J U D J M E N T
This complaint is filed by the complainant u/S. 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the OP-1.
The brief fact of the case is that the complainant purchased a mobile set from the OP-1 on 17.4.2016 vide Model No. UIBE PIN Lenovo having IMEI No. 860579030637690 for an amount of Rs. 7,900=00 paid in cash to the OP-1 and OP-1 after receiving the said amount has issued a money receipt of Rs. 7,900=00 in favour of the complainant dated 17.4.2016 and the said mobile set was covered under one year warranty period. Immediate after the purchase, the complainant detected some defects in the said mobile set i.e. the display screen was affected due to ingress of dust inside the screen of the said mobile set, vibration mode was also not functioning properly. Due to aforesaid reasons the mobile was not working in proper way and the complainant was facing so many problems on different occasions. So the complainant went to the OP-2 servicing centre for repairing of the said defective mobile. The said service centre examined the said defects of the mobile set of the complainant and discovered that the date of purchase of the said mobile set was on 10.4.2016 and the registered owner of the said mobile set was Kuntal Rajbanshi, resident of 298 S.N. Dey Road, PO. & PS: Chinsurah, Dist: Hooghly. The complainant was very much surprised to get such kind of information from the said service centre regarding his mobile set and requested the service centre to give him one copy of the said information about the purchase of the said mobile set dated 10.4.2016 in favour of Kuntal Rajbanshi. After receiving the said copy the complainant came to learn that one Mr. Kuntal Rajbanshi purchased the said mobile through online by Flipkart.com on 10.4.2016 amounting to Rs. 7,500=00. Thereafter, the complainant went to the office of the OP-1 and submitted the cash memo of the said mobile set issued by the OP-1 and also stated about the said defects, as well as, about the said information obtained from the said service centre regarding the date of purchase and the name of the customer of the said mobile set and also requested to the OP-1 to know the actual picture regarding the said mobile set, but the OP-1 did not pay any heed to the request of the complainant, rather the OP-1 told the complainant that the said mobile set was not an old one, it was a new one and did not take any proper step till date. Thereafter, the complainant went to the office of the OP-1 for several times and requested the OP-1 to receive the old mobile set and to refund Rs. 7,900=00 towards the cost of the said mobile, but the OP-1 refused to accept the said documents and told the complainant that the complainant can take any steps against them and also said they have no desire to refund Rs. 7,900=00 towards the cost of the said mobile and the OP-1 did not pay any heed to the request of the complainant which amounts to deficiency in service and unfair trade practice on the part of the OP-1. The OP-1 behaved rudely as and when the complainant went to the office of the OP-1. The OP-1 has sold an old mobile set in place of a new one which clearly indicates deficiency in service and unfair trade practice on the part of the OP-1. Such kind of conduct, as well as, illegal activities of the OP-1 cannot be tolerated at all. The distributorship of the OP-1 must be cancelled by way of passing appropriate order to save the future purchasers. The OP-1 thinks that they are above the law of this land and threatened the complainant that he can do nothing against this OP-1 because the ministry level and police department are in his pocket. Such kind of illegal activities of the OP-1 must be stopped by imposing huge compensation. So, the complainant having no other alternative to get relief has been compelled to file this case before this Forum with a payer to direct the OP-1 to refund Rs. 7,900=00 towards the cost of the said mobile which has already been paid by the complainant on 17.4.2016, to pay Rs. 75,000=00 as compensation towards mental pain, agony and harassment and Rs. 15,000=00 as litigation cost.
This complaint is contested by the OP-1 by filing written version denying all the material allegations made by the complainant in his petition of complaint. The OP-1 submits that the complainant approached this OP with a request to arrange for purchase of such a kind of mobile set which can only purchased by Flipkart through the internet. This OP purchased the mobile set in dispute through their men by using the Flipkart and handed over this new set in packed form in the hands of the complainant. The matter whether the mobile set in dispute is a second hand one or not can be cleared from the mobile set itself and the mobile set itself will speak out about the first date of activation of the mobile set in dispute through the SIM by which it was activated for the first time and the same activation date will indicate that whether the mobile set was handed over to the complainant as a fresh one or the same was an old second hand one as alleged by the complainant. The complainant is suppressing the fact as aforesaid deliberately had not made the company of the said mobile set in dispute a party to this case. The OP-1 further submits that this OP at the time of handing over the set to the complaint had delivered its own bill, as well as, the retail invoice bill along with LENOVO Warranty to the hand of the complainant. Thereafter the complainant for the purpose of procuring the story of the case concocted pretended that the retail invoice bill has been collected by him from the OP-2- Service Centre. The existence of non-allegation from the part of the complainant about the matter of non-receiving of any SIM card as is reflected in the retain invoice/bill itself speaks that the total story as made out by the complainant is a completely false one. The OP-1 has prayed for dismissal of the case.
The OP-2 has also contested the case by filing written version separately stating that this OP has no liability regarding the illegal trade practice of the OP-1 and this OP is completely in dark about the matter. It is admitted by the complainant also that he has no allegation against this OP, so it is require to expunge the name of this OP from this case otherwise this OP will suffer irreparable loss and injury. This OP further submits that this case is maintainable against this Op and it shall be dismissed.
Decision with reasons:
Heard the argument in full. Perused the evidence on affidavit, as well as, documents submitted by the complainant and the written version and written notes of argument filed by the Op-1 and the written version of the OP-2. OP-1 also filed the interrogatories to the complainant in respect of which the complainant replied as well. Dealing with the complaint and the written version filed by the OP-2, we see that there is no allegation or prayer against the OP-2. Perusing the documents filed by the complainant in respect of purchasing the said mobile, it is observed that for a single mobile having the IMEI No. 860579030637690, there are two sale invoice, one has been in the name of ‘Kuntal Rajbanshi’ which has been purchased on 10.4.2016 through Flipkart and the another one is in the name of ‘Subenkar Bhowmick’ which has been purchased on 17.4.2016 from Sri Ganesh Enterprise. Then the question arises about the real owner of the said mobile. Obviously, the first owner, i.e. ‘Kuntal Rajbanshi’ is the real owner as he has purchased on earlier date, i.e. on 10.4.2016 and the second one, i.e. the complainant ‘Subenkar Bhowmick’ will not ever be able to claim as the real owner of the mobile. The OP-1 argued that the complainant requested the OP-1 to book for the said mobile through Flipkart. Then the question arises why the complainant will book a mobile in the name of another person. There was no answer from the side of the OP-1. The OP-1 further argued that the mobile is not a second hand set as the mobile was seal packed, the complainant has used his SIM for the first time in the said mobile set. The mobile in question may be in the packed condition while purchasing from the OP-1 and the SIM card may have been inserted in the said mobile for first time. Even then, the same mobile set should be called second hand as the complainant has purchased the mobile on a later date from the date of purchase by ‘Kuntal Rajanshi’ having the same IMEI number.
So the argument proceeded by the OP-1 does not consider any result. Hence the complainant wins the case.
Hence, it is
O r d e r e d
that the Consumer Complaint being No. 171/2016 is allowed on contest against the OP-1 with cost and dismissed on contest against the OP-2 without any cost directing the OP-1 to refund the cost of the mobile amounting to Rs. 7,900=00 to the complainant within 45 days from the date of passing of this order, failing which, it will carry penal interest @9% per annum for the default period. The OP-1 is further directed to pay compensation Rs. 2,000=00 and litigation cost Rs. 1,000=00 to the complainant within 45 days from the date of passing of this order, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Roy)
President
(Pankaj Kumar Sinha) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
