BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 185 of 2016
Date of Institution : 01.08.2016
Date of Decision : 06.12.2017
Baldev Raj son of Sh. Sunder Dass resident of Dhani Bachan Singh Dabwali Road, Ellenabad, District Sirsa.
……Complainant.
Versus.
- Sunil Kumar Prop., Zee Mobile Centre, 14, Palika Bazar, Gandhi Chowk, Ellenabad-125102, District Sirsa, Haryana.
- Director of Best IT World (India) Private Limited, 87, Mistry Industrial Complex, MIDC Cross Road, “A” Andheri (East) Mumbai-400093, Maharastra.
- M/s Harman Distibutor being Authorized Distributor of IBALL Mobile, Situated at Shiv Chowk Sirsa Tehsil and District Sirsa, Haryana.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh. A.K. Siroha, Advocate for complainant.
Sh. Abhinav Sharma, Advocate for opposite party no.1.
Ops no.2 and 3 exparte.
ORDER
In brief facts of the case of complainant are that the op no.1 is the authorized dealer of op no.2 company. Op no.1 is doing the business of sale of mobiles etc. at Ellenabad, District Sirsa, being the authorized dealer of op no.2 company. The complainant had purchased one new mobile set bearing Marka “I ball, comb1t comphj” from op no.1 on cash payment vide Bill No.22906 dated 15.08.2015 for Rs.7300/-. At the time of sale of this Mibile set, op no.1 had assured the complainant that this mobile set will work properly, effectively and that there would be no complaint to the complainant regarding the working of the said Mobile set. The op no.1 had given one year guarantee in respect of this mobile on behalf of himself and also on behalf of op no.2 and in case of non-working of the mobile set will be replaced with new one, without charging any amount from the complainant. After few days of the purchase of this mobile set, it developed several defects. There was problem in front camera, only one sim card working, Automatic down load and working software problem and battery automatically show low etc. In this way, there were the problems which came into the said Mobile set. Thereafter, the complainant met the op no.1 and requested him for replacement of the same with new one without any defect and it was within the period of guarantee. Then the op no.1 kept the defective mobile set with him and asked the complainant to take back the same after two days as it would be got repaired from the Care Centre of the op no.2 company. Thereafter, after two day the complainant took the mobile set from op no.1 but after two three days the above said problems in its working again started coming into the mobile set. Upon which the complainant again went to op no.1 and then op no.1 directed the complainant to bring this mobile set has not come to this Care Centre. Then the official of the Care Centre told that prior to it this Mobile set has not come to this care centre and the dealer/op no.1 has himself opened the mobile set is not working being defective one till today. The ops have intentionally and willfully sold the defective set of mobile to the complainant intentionally and malafidely. Therefore, both the ops are jointly and severally liable and responsible for replacement of the new mobile set to the complainant alongwith compensation on account of harassment etc. When the ops did not listen the complainant despite several requests and visits, then the complainant got issued a legal notice dated 19.05.2016 through Shri R.S. Josun Advocate, Civil Courts, Ellenabad, District Sirsa, for the above said cause of action but the ops also did not care fr the legal notice and they also did not reply the legal notice. Now the ops have totally refused to replace the above said defective mobile set with new one, about a week back. Hence now the complainant has left with no other alternative but to file this consumer complaint. The above said acts on the part of the opposite parties amount to causing unnecessary loss, harassment, and it also amounts to gross deficiency in service on the part of the ops, therefore, the complainant is entitled to the compensation of atleast Rs.10,000/- besides the other claim. Hence this complaint.
2. The OP No. 1 &2 appeared and filed its separate written statement in which they have taken preliminary objections as not maintainable, no cause of action, non-joinder and mis-joinder of necessary and proper parties. Further submitted by op no.1 that the complainant has the mobile from answering op. Op no.1 is the dealer of the company and company give the warranty of any mobile as per the warranty condition of the company, any burning defect is not cover under the warranty. However, the op no.2\company is liable for all kind of loss/defect during the warranty period. The answering op supplied the set in intact/packed condition without any kinds of tamprament with the sealed box containing the mobile set. Moreover, the complainant did not raise any objection or complaint in this regard at the time of purchase of the mobile. Because the seals of the box was opened by the complainant and the complainant himself broken out the seals of the box in order to check out the look and mobile set. Further more it is submitted that any mobile set could occur the fault/defect due to non-use according to instructions, due to causes beyond control of human being like lightening, abnormal voltage, act of God, improper testing, operation, maintenance, installation, adjustments, testation, modification, spills of liquor or substances, curly cards that have been stretched or crimped, damage caused by ancillary equipments used with product/mobile etc., hence it is denied in toto that the alleged defects occurred in set due to any manufacturing or any default on the part of answering op, hence the replying op is not liable to replace or repair the set, if there is any fault the same could be detected and removed by authorized centre only. It is further submitted that it is wrong to say that complainant ever approached the answering op with any defect. It is further submitted that the answering op doing his business on a nominal profit, whereas the customer pre-set their mind to purchase the mobile set after go through the pamphlets, T.V. advertisement, publications etc. and thereafter approached to the dealers and purchased the mobile by brand name and model number. Moreover, the set purchased by the op no.1 from its manufacturer/distributor in a sealed and packed condition and sell out the same as he received from the Distributor/manufacturer on the nominal profit. In the eventuality, if the customer desires to see the outlook of the set, the Dealer always provided the demo-set as well as catalogue, provided by the manufacturer, hence there is no active part between the customer and manufacturer, of op no.1, as such complainant has not cause of action to file the complaint against answering op. It is important to mention here that answering op has never given any guarantee/assurance or warrantee of mobile set to the complainant, as the giving of guarantee/warrantee by answering op does not fall within the criteria of him, hence the question of giving any guarantee/warrantee without having received from manufacturing company, to the complainant, does not arise at all. Meaning thereby the dealers after sale of mobile set on behalf of the company, having no interference between the customers and Service Centre. The answering op never committed any default on its part. If the complainant approached to the answering op, then the answering op would have tried his best to redress the grievance of complainant, if any, through proper channel, hence the question with regard to ask the complainant regarding defect in Mobile set simply does not arise at all. The warranty had been issued by the company/op no.2 which is liable for any loss to the complainant. Answering op has no concern with this. As stated above, the answering op is just a dealer and nothing else, the answering op used to sell the handset in a packed condition as provided by the company/brand at very nominal profits. It is further submitted that no such notice has ever been received by the answering op. The complainant is not entitled for any relief from the answering op, the answering op is just a dealer and nothing else. There is no question of any harassment, humiliation to the complainant by the answering op. The complainant is not entitled to any compensation as there is no fault on the part of answering op.
Opposite party no.2 in the written statement submitted that in the present complaint has not Quoted/mentioned the IMEI number of his mobile handset make AndiCobalt Oomph 4.7D or no contacts number and therefore op no.2 submits that IMEI number is very important to find out the track record of the mobile handset. But the present matter on account of not having IMEI number op no.2 is facing great difficulty to find out the records and hence unable to give reply. Therefore, it is necessary to issue direction by this Hon’ble forum to the complainant to furnish the IMEI number to the op no.2. It is further submitted that in the entire complaint there is no particulars given by the complainant about whether he has ever visited out service center for any grievance. The said fact sufficient to hold that the complainant has never visited out service center for any point of time. The op no.2 submitted that they today also ready and willing to provide service to the complainant to visit op service center. Op no.2 submit that before filing of the complaint the complainant has not issued any notice to op no.2 for any grievance. The op no.2 submit that in absence of notice the present complaint is not maintainable in law. Therefore, the present complaint liable to dismiss with cost. Hence, considering said facts the op no.2 liable to discharge from present complaint or this Hon’ble forum dismiss the complaint against op no.2.
3. The parties have led evidence in the form of affidavits and documents. The complainant has tendered Ex. C1-his own supporting affidavit; Ex.C2 bill of mobile, Ex.C3 registered AD, Ex.C4 legal notice, Ex.C5 and Ex.C6 postal receipts etc, on the other hand ops did not produce any document.
4. We have heard Ld. counsel for the parties and have perused the case file carefully.
5. The purchase of mobile by the complainant from the op no.1, it is an admitted fact on record. The complainant has filed this complaint with the allegation that after few days of the purchase of the mobile, it developed several defects. There was problem in front camera, only one sim card working, automatic down load and working, software problem and battery automatically show low etc. In order to prove his allegation the complainant has filed an affidavit Ex. C1-his own supporting affidavit; Ex.C2 bill of mobile, Ex.C3 registered AD, Ex.C4 legal notice, Ex.C5 and Ex.C6 postal receipts etc.
6. On the other hand, opposite party no.1 who is contesting this complaint being dealer of the manufacturer has taken plea that he has supplied the set intact/packed condition without any kinds of tamprament with the sealed box containing the mobile set and he is not at fault, if there is any manufacturing defect in the mobile set it is only the obligations of the manufacturer to replace the mobile who has given the warranty of his product.
7. In order to prove his defence plea, Sunil Kumar, Proprietor of the mobile shop has placed his affidavit Ex.R1 in which he reiterated all the contents of his written statement.
8. The op no.2 who is the manufacturer of this product and issues the warranty of his product at the time of sale of the product, put their appearance and filed written statement in which they did not deny the sale of the mobile to the complainant through their dealer but has taken plea that the complainant has not furnished the IMEI number of his mobile. The complainant has not visited to their service centre and even today they are ready and willing to provide service to the complainant and will rectify all his alleged grievance but for which the complainant required to visit their service centre. They have also taken the plea that the warranty has already expired. They have admitted the issuance of notice by the complainant and alleged that they replied the notice.
9. The op did not led any evidence in order to prove their defence plea despite availing three opportunities. Rather on the day of last opportunity for the evidence of op, they did not put their appearance and did not lead their evidence as a result of which they were proceeded against exparte. The op no.3 was also proceeded against exparte on 20.07.2017 as they did not put their appearance even despite receiving of the notice.
10. The evidence led by the complainant has gone unchallenged and unrebutted against op no.2 and 3 as they did not lead any evidence in order to rebut evidence of the complainant. Since it is a proved fact on record that the mobile set of the complainant which he had purchased from the op no.1 who is dealer of the op no.2 and warranty card was issued but however the op did not provide the proper service to the complainant qua the defects in the mobile set despite his repeated requests which clearly amounts to deficiency of service on their part and the loss to the complainant.
11. In view of the above discussion, direct the ops to replace the mobile of the complainant on deposit of the mobile and accessories by the complainant within 15 days or in the alternate to make refund of Rs.5300/- after deducting Rs.2000/- as depreciation from the total cost of the mobile. The complainant will deposit the mobile and accessories within 15 days and thereafter the ops shall replace or refund the amount within 30 days. The Ops are further directed to pay a sum of Rs.1500/- as composite compensation on account of his harassment, mental agony, deficiency in service and litigation expenses within a period of 30 days from the date of receipt of this order, the ops are also directed to extend the warranty of the mobile for six months from the date of this order. A copy of order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated:06.12.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
