Date of filing : 30.11.2017
Judgment : Dt.16.04.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by Shri Tapas Kumar Das alleging deficiency in service on the part of the opposite the parties ( referred as OP hereinafter ) (1) Techno Care – Kolkata ( Gionee Care ) (2) Aanchal Telecom ( 3) Gionee.
Case of the complainant in brief is that the complainant purchased a Gionee – A1 (Gold) Smart Phone from OP No.2 on 17.04.2017 by paying Rs. 19,999/- ( including vat ) and as per instruction of seller put the mobile phone for charging the same but, subsequently, he found that the smart phone became extremely hot and the complainant immediately informed the matter to seller of the said phone i.e. the OP No.2 and being instructed by the OP No.2 to deposit the said phone with the service provider on 25.04.2017, deposited the same with OP No.1 on 08.05.2017 and kept himself updated regarding service of the said phone.
The complainant has stated that on several occasions he communicated his complaint to the seller i.e. OP No.2 regarding the problem of heating, hanging up the system of the same and bad condition of the camera but the said problems have not been sorted out yet and, therefore, the complainant approached to the Consumer Dispute Redressal and Grievance Cell to redress the same and accordingly a date for tripartite meeting was fixed by the said Cell but that too went in vain and, therefore the complainant by filing the instant consumer complaint prayed for direction upon the OPs to repair the said Smartphone and handover it to the complainant or to handover another set of similar nature/Brand, alternatively, to refund Rs.20,000/- along with interest @ 18% p.a., to pay compensation to the tune of Rs. 20,000/-, to pay cost and other reliefs.
The complainant annexed tax invoice dated 17.04.2017 another tax invoice showing deposition of the said Smartphone, Service Job Sheet dt. 08.05.2017, copy of complaint lodge with Consumer Grievance Redresal Cell . Letter dt. 28.06.2017 issued by Asstt. Director, Central Consumer Grievance Redresal Cell to the OP no.1.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the said Smartphone was duly deposited with the OP No.1 and Job Sheet was generated but no defect such as excessive heating of the phone had been found. It is stated by the OP No.1 that any mobile phone having fast charging facility may get hot slightly during charging but after disconnection from charging it becomes cool within minutes. It is further stated by the OP No.1 that they intimated the complainant to collect the phone since it was ready for handing over but the complainant did not turn up and, therefore, there is no deficiency on the part of the OP No.1 and this OP is not liable to pay any compensation and accordingly prayed for dismissal of the case.
The complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of agreement, the complainant narrated the case. Ld. Advocate for the OP No.1 submitted that they are willing to return the said phone since the phone is lying with them.
Points for determination :
- Whether there is any deficiency in providing service
- Whether the complainant is entitled to the reliefs as prayed for
Decision with reasons
Point Nos. 1 & 2 :
Both points are taken up for comprehensive discussion and decision.
The complainant claimed to have purchased one Gionee A-1 Gold Smartphone set from the OP No.2 by paying Rs. 19.999/-. In support of such averment Tax Invoice dt. 17.04.2017 is filed wherefrom it appears tht the complainant purchased one Gionee A-1 Gold Smartphone set being IMEI No. 863854031049907 and an amount of Rs. 19,999/- had been paid out of which cost of the Smartphone was Rs. 17,467/- and Rs. 2,532/- towards VAT.
The complainant has further claimed that during charging the said mobile phone became excessively hot and to solve that problem the complainant deposited the said phone as per direction of the OP No.2 ( Seller) to the Service Centre. ( OP No.1).
It further appears from tax invoice dt. 17.04.2017 that an endorsement as to “Received Box for service related problem as phone getting heat during charging . Sending to service Centre” has been made thereon by the OP No.2 which reveals that the complainant returned the said mobile phone on 25.04.2017 within 8 days from the date of purchasing, to the OP No.2 and OP No.2 advised complainant to send it to the OP No.1 and therefore, it is evident that the problem of over heating was remaining there from the very date of purchasing. It further appears from service Job Sheet dt. 08.05.2017 that the said set was deposited with the OP No.1 in good condition with problem of ‘ heating during charging’
It appears from complaint lodged by the complainant to Consumer Grievance Redressal Cell and a letter dt. 21.09.2017 issued from Asstt. Director, Consumer Affairs Department to the OP to appear before the Redressal Cell for attending tripartite meeting but the Op no.1 did not attend such conduct of the complainant reveals that the complainant was very much eager to solve the issue and approached the Redressal Cell but that yielded no fruitful result and, therefore the complainant approached this Forum for redressal of his grievances.
However it is stated by the OP No.1 that the Op no.1 on receiving the said phone took initiative to service the same and did not find any problem of overheating.
On perusal of the documents on record it appears that the Job Sheet generated by OP No.1 registering the complaint of overheating has been annexed with the complaint petition suggests that the complainant registered his grievance but no scrap of paper has been filed by the OP No.1 showing either they had solved the problem of overheating or there was no problem at all.
The OP No.1 claimed that the phone was not as defective as claimed by the complainant but such mere averment without any supporting document cannot substantiate such claim. Moreover, the OP No.1 even receiving notice from Grievance Redressal Cell did not appear for tripartite meeting which suggests that the OP No.1 was not interested to solve the matter. Had the OP No. 1 interested to solve the problem they might appear for tripartite meeting and handover the mobile phone to the complainant which had not been done. Moreover, the OP No.1 being authorised service centre of OP No.3 and the OP No.2 being seller of No.3 may abide by some terms and conditions but the same has not been brought before us and therefore it is held that the OPs are jointly liable for causing deficiency in service.
The complainant prayed for repairing of the Smartphone or to handover another set of similar nature alternatively to refund m Rs. 20,000/-.
In our view, the prayer for repairing may be allowed. If they fail to do so then replacement of defective phone set may take place by new one of similar description.
The complainant prayed for compensation of Rs. 20,000/- .
It appears that the complainant purchased the phone in 14.04.2017 by paying Rs. 19,999/- to the OP No. 2 and after noticing some defects took it to OP No.2 on 25.04.2017 and thereafter deposited the same on 08.05.2017 with OP No.1 and, therefore, he did not get the opportunity to use the phone which caused harassment to him and therefore, the OP are liable to pay compensation to the tune of Rs. 3,000/- towards compensation. Point Nos. 1 & 2 are decided accordingly.
In the result, the consumer complaint succeeds.
Hence,
Ordered
That CC/675/2017 is allowed on contest against OP No.1 and allowed exparte against OP Nos. 2 & 3.
The OP No.2 is directed to take initiative to repair the smart phone and handover to the complainant within 15 days from the date of this order.
The OPs are further directed to pay Rs. 3,000/- towards compensation to the complainant within aforesaid period.
Liabilities of Ops are joint and several.
