Delhi

East Delhi

CC/646/2013

Sh.Dinesh Bansal - Complainant(s)

Versus

Tayab Khan - Opp.Party(s)

15 Oct 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC No.646/ 2013 :

In the matter of:

Sh.Dinesh Bansal

S/o. Sh. LalSingh

 

C/o. 340-1B, Street No.4, Halkara,

KuanJwala Nagar, Shahdara,

Delhi – 110 032

Complainant

                                       Vs

1. Sh.Tayab Khan (Proprietor)

Mobile Point 156A, Maliwara,

Basant Road, Ghaziabad

 

2. Karban Ali (Service Centre)

A1/274, MCD School Street,

Jwala Nagar, Shahdara,

Delhi – 110 032

 

3. Karbon Mobile

D – 170, OkhlaIndl. Area Phase – I,

New Delhi – 110 020

Respondents

 

 

Date of Admission :07/08/2013

                                                                                    Date of Order          : 17/06/2015

 

 

ORDER

 

Ms. Poonam Malhotra, Member :

 

 

The brief facts of the present complaint are that on 03/06/2013 the complainant purchased Karbonn Mobile Handset, Model No. A2+from Respondent No.I for Rs.4,800/-vide Invoice No.500.  From the very first day of its purchase the said handset was defective and after a month of its purchase on the advice of the Respondent No.I it was submitted to Respondent No.II for replacement when it started creating problem and stopped working.  Replacement was denied by Respondent No.II on the ground that the handset in question was not genuine and the handset was returned with the remark ” IMEI Not Found its UTL A2+ IMEI No.911258351763343”.  The complainant revisited Respondent No.I and requested him for replacement of the handset in question but in vain.  It is in these circumstances that the complainant has prayed for refund of Rs.4,800/-, the cost of the said handset, Rs.50,000/- as compensation for harassment , mental pain and agony and Rs.15,000/- as the cost of this litigation.

 

In response to the notices issued to the respondents only Respondent Nos.I and III put up appearance and filed their written version.  Respondent appeared in response to the notice issued to it and filed their respective written versions.  In the written statement filed by Respondent No.I, while admitting the sale of a Karbonn Mobile handset Model A2+ with IMEI No.911256351763343, he has denied the sale of mobile handset with IMEI No.911258351763343 to the complainant.  He has contended that there is no privity of contract between the complainant and Respondent No.I.  It is contended that the complainant has no locus standi to file the present complaint as no cause of action arises to him against the Respondent No.I.  He has prayed for the dismissal of the present complaint qua him as the complainant has not approached this Forum with clean hands and has concealed material facts.  It is also contended that the complainant is not a Consumer as defined under the The Consumer Protection Act, 1986.  Rest of the allegations have been denied.

 

In its written statement, the Respondent No.III has denied the averment that the handset was deposited with the Authorized Service Centre/Respondent No.II.  It is submitted that the present complaint has been filed by the complainant with regard to the alleged defects in the mobile handset with IMEI No.911256351763343 but the Certificate filed by him which is alleged to have been issued by the Authorized Service Centre with regard to the mobile handset with IMEI No.911256351763343.  It is contended that no cause of action arises to the complainant against it. Rest of the allegations have been denied.

 

No Rejoinder to the written statements of Respondent Nos. I & III filed by the complainant to rebut the contentions raised by them.  Evidence by way of Affidavit filed by the complainant do not bear the signature of the complainant as are appended to the complaint but only his name has been written in capital letters in the space provided for signatures of the deponent.  As such the affidavit filed in evidence is no affidavit in the eyes of law and cannot, thus, be accepted in evidence.  In the Affidavit filed in evidence by Respondent No.I, it does not show by whom the same is being executed as at the very outset in the space provided for mentioning the name of the person who is executing the affidavit is blank and does not mention the name of the deponent though it bears the signature of the Respondent No.I as Deponent. In view of this the affidavit filed on record by the Respondent No.I is no affidavit in the eyes of law.  Affidavit filed in evidence by Sh. Kapil Kumar on behalf of Respondent No.III in support of its case. 

 

            Heard and perused the record.

 

            The complainant has filed on record only two documents viz., the Cash Memo dated 03/06/2013 and a Certificate with the remark ” IMEI Not Found its UTL A2+ IMEI No.911258351763343”.  On perusal of both these documents we see that the IMEI Numbers mentioned on both the said documents do not match.  The IMEI Number mentioned on the Cash Memo is 911256351763343 but the Certificate has been issued with regard to the mobile handset with IMEI Number 911258351763343.  This shows that the two documents are with regard to two different mobile handsets and the certificate does not pertain to the mobile handset alleged to have been purchased by the complainant on 03/06/2013.   Further, the Certificate filed on record has been issued by All Cell Solution and not Respondent No.II as alleged by the complainant as is evident from the stamp appended on the said Certificate.  When the documents filed on record by the complainant in support of the allegations raised by him in his complaint are themselves contradictory to each other the complainant has failed to prove his case against the respondents.  In these circumstances, the relief claimed by the complainant is ex facie frivolous. 

 

Taking all the facts and circumstances into consideration we are of the view that the present complaint filed by the complainant is frivolous and vexatious and deserves to be dismissed and it is accordingly dismissed with cost in view of the power conferred on us by virtue of Section 26 of the The Consumer Protection Act, 1986. The complainant shall pay as cost Rs.1,000/- each to Respondent Nos. I & III within 45 days from the date of this order and its receipts be filed on record. In case he fails to comply with the order then it shall be recovered from him through the process of law.

Copy of the order to be sent to both the parties as per rules.

 

(Subhash Gupta)                                (Poonam Malhotra)                                       (N.A. Zaidi)

          Member                                                         Member                                                              President