DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.70 of 2010
Sri Gurdeep Singh, aged about 59 yrs.,
S/o Late Sri Krishna Deep Singh,
R/o 6/690, Vikas Nagar,
Near Punjab National Bank,
Thans- Vikas Nagar, District- Lucknow.
……Complainant
Versus
- Manager,
T.V.18 Home Shopping Network Ltd.,
7th Floor-H.C.-24, Sector-16A,
Film City Noida, Pin-201301
U.P.
- Proprietor,
Exotic Corporation,
E-87, West Road,
Vasant Vihar, New Delhi.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for new mobile or Rs.5,000.00 and for payment of cost of legal notice of Rs.1,100.00 and cost of litigation and advocate fees of Rs.8,800.00.
The case in brief of the Complainant is that he had purchased a mobile from OP No.1 on 20.05.2009 through OP No.2 for a sum of Rs.4,500.00. The OP No.2 had also issued a receipt of Rs.4,500.00. A warranty of 6 months was given on the mobile of the Complainant. After 2-3 days the touch screen of Complainant’s mobile became defective. The two batteries given with the mobile were also defective. The Complainant had sent his mobile for repairing through courier on 27.09.2009 to OP No.2. After repairing the mobile it was sent
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to the Complainant but it did not work properly and the same defects again arose. The Complainant contacted OP No.1 for the same but they refused to repair or replace the mobile. The OPs sold the defective set to the Complainant which was unfair trade practice and deficiency in service. The Complainant sent a legal notice to the OPs on 16.11.2009 but no reply was given by the OPs, hence this complaint.
The OP No.2 has filed the objections wherein it is mainly submitted that the Forum has no jurisdiction to entertain and decide the present complaint as the answering OP is based at New Delhi and even otherwise there is a specific clause in the bill/agreement between the parties that all disputes are subject to the jurisdiction of Delhi Courts only. OP No.2 further states that their correct name is Exotic Corporation but the Complainant has not impleaded/filed the case against the answering OP. OP No.2 is ready and willing to change the mobile phone set of the Complainant and accordingly the Complainant be directed to send the alleged defective mobile phone complete in all respect to the answering OP and accordingly the answering OP undertakes to send a new mobile phone of the same make and model to the Complainant and the Complainant be further directed to withdraw his complaint forthwith and the parties be left to bear their own costs.
Notice was issued to OP No.1but despite time taken no WS filed, hence the case proceeded exparte against OP No.1 vide order dated 29.09.2011.
The Complainant has filed his affidavit with 4 annexures. The Complainant has filed written arguments. The OP No.2 has filed the affidavit of Sri Vijay Prakash Agarwal.
Heard Counsel for the Complainant and OP No.1 but none appeared from the side of the OP No.2 to argue the case. Perused the entire record.
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Now, it is to be seen as to whether the Complainant’s mobile which was purchased from OP No.1 through OP No.2, became defective within the period of warranty and that it could not be repaired properly, hence the OPs committed deficiency in service or not, if so, its consequences.
The Complainant has filed a photocopy of the retail invoice as annexure 1 with his affidavit which shows that a mobile phone model No.S-30 was purchased by the Complainant on 20.05.2009 for a sum of Rs.4,500.00 from OP No.2. The Complainant has also filed a photocopy of courier receipt which shows that the mobile was sent by the Complainant to Exotic Corporation OP No.1 for repairs. From the WS filed by the OP No.2, it transpires that they are ready and willing to change the mobile set of the Complainant. This is basically in consonance with the assertion of the Complainant that his mobile became defective and hence he wanted to get it replaced but now the OP No.2 has stated in their WS that they are ready to replace the mobile set but in this regard the stand of the Complainant is that they did not replace the mobile set when he asked the OPs to replace the defective set. It is only when he filed the case that the OP No.2 has come up with plea to replace the set. From the affidavit filed by the Complainant and the documents filed and the statement of the OP No.2 in the WS it is clear that the Complainant’s mobile had become defective. Had it not been defective then OP No.2 would not have offered to replace it but this offer has been made only after WS filed by OP No.2 much after filing of the complaint by the Complainant. When the Complainant’s mobile became defective on 20.05.2009 then the OPs should have replaced it if they could not repair it properly but that was not done by the OPs and it is only after filing of the case that the OP No.2 is now offering to replace the set which shows that there is deficiency in service on the part of the OPs, therefore the Complainant is not only entitled
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to new mobile set of the same value in place of the old one but also to get compensation for the harassment caused to him. He is also entitled to cost of the litigation.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to provide a new mobile set of the same value in place of old one to the Complainant and if they are not able to do so then the OPs will pay Rs.4,500.00 with 9% interest from the date of filing of the case till the final payment is made to the Complainant.
The OPs are also directed to pay Rs.3,000.00 (Rupees Three Thousand Only) as compensation and Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.
The compliance of the order is to be made within a month.
(Anju Awasthy) (Vijai Varma)
Member President
Dated: 5 January, 2016
