DATE OF FILING: 11.01.2017.
DATE OF DISPOSAL: 10.04.2018.
Sri Karuna Kar Nayak, President.
The complainant Subrat Kumar Mahapatra has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. The case of the complainant in brief is that on 21.09.2015 the complainant had purchased a mobile hand set (HTC) Model No.E9+ dual SIM, EMIE No. 357709063174432 from the shop situated at room No.4 of Sri Sai Complex, Gandhinagar Main Road, Berhampur after paying the cost of Rs.35,000/- and the retail invoice has also been issued by the O.P.No.1 in favour of the complainant to that effect bearing No. HTC-BIC-R-0202/15-16. The said handset was also given with one year warranty from the date of its sale which is self evident from the sale invoice. During the warranty period that handset was found to be defective like system hanging problem, auto off/on, network up and down, sometime body over heating problem etc. and the same was also reported to the seller in person and being advised he had been to the authorized HTRC service centre namely Orissa Enterprises, City High School Road, Hanuman Bazar, Berhampur on 11.07.2016(OP No.2) and handed over the handset for necessary repair and after software update the authorized HTC Service Centre returned the same to the complainant on the same day with an impression that the defect is rectified. But again the said handset gave the same problem on use so again the complainant went to the company authorized HTC Service centre on 23.07.2016 (OP NO.2) and on the same day he got his handset from the service center after software repair with an impression that the defect of the handset is rectified but the same defect still continues and the complainant feels it difficult to use the handset and due to heat of the handset he is suffering from ear problem which may lead to other health related problems in future use of the said handset. Further the complainant had also been to the company authorized HTC Service Centre (O.P.No.2) to report the said problem of his handset in response the company authorized HTC Service Center wanted another 15 days to one month time. As the complainant felt it would be another problem for him as because in daily life mobile’s requirement is much more than that of an ambulance. Being dissatisfied by the complainant he sent a legal notice two times through his advocate to all the O.Ps but though they received the same and the O.P.No.2 gave an evasive reply and the O.P.No.1 & 3 slept over the said legal notice from which its transpires the carelessness and adamant attitude of the O.Ps how they have deliberately made the deficiency in service by paying a deaf ear to the grievance of the complainant in not rectifying the problem in the handset of the complainant which comes under the ambit of the C.P. Act. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to refund the total cost of handset of Rs.35,000/-, compensation of Rs.50,000/- for mental and physical harassment, litigation cost of Rs.5000/- in the best interest of justice.
3. The complaint is admitted and notices were issued to the Opposite Parties for their appearance and filing written version on the date fixed. But they neither preferred to appear nor filed any written version; as such they set exparte on dated 03.08.2017.
4. To substantiate his case the complainant has filed his evidence on affidavit, documents as per list and written notes of argument.
5. On the date of exparte hearing of the case, we heard the learned counsel for the complainant and perused the case record and the materials placed on it. We have also thoughtfully considered the submissions made before us by the learned counsel for the complainant. During the warranty period the handset was found to be defective like system hanging problem, auto on/off, network up and down, sometime body over heating problem etc. for which the complainant handed over the said phone to O.P.No.2 on 11.07.2016 for necessary repair who returned the same to the complainant on the same day with an impression that the defect is rectified. Again the same problem arose as such the complainant went to O.P.No.2 on 23.07.2016 who returned the handset after software repair with an impression that the defect of the handset is rectified but the same defect still continued. In his affidavit the complainant has stated that the O.Ps failed to replace the defective handset phone or in alternative to refund the cost of the said phone i.e Rs.35,000/- during the warranty period. The Hon’ble National CDR Commission, New Delhi has held in case of M/S Sony Erison India Ltd. versus Shri Ashish Agrawal reported in 2008 (1) CPR 47 that “Where replaced mobile was also defective, State Commission rightly accepted the appeal for refund of the complainant rather than further replacement”. In this case when the O.Ps failed to contest the case and not controverted the contentions of the complainant. We presumed the contention of the complainant is true. The mobile was found to be defective during warranty/guarantee period and the O.Ps failed to rectify the same inspite of repeated approach by the complainant.
6. On foregoing discussion it is crystal clear that the O.Ps are negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.Ps.
7. So far as the compensation and cost of the case is concerned, we are convinced that the complainant has repeatedly run after the O.P.No.2 for repairing or replacement of his defective mobile set due to problem during warranty/guarantee period but the O.Ps failed to take any effective steps to short out the problem of the complainant for which the complainant has suffered physically and mentally for which he is to be compensated. Further the complainant is also entitled to get cost of litigation since he has hired the services of an advocate for filing his complaint in this Forum and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award compensation as well as litigation cost in favour of the complainant.
8. In the result, the complainant’s case is allowed on exparte against the O.Ps. The O.Ps are jointly and severally liable as such they are directed to refund the cost of the defective mobile set i.e. Rs.35,000/- and Rs.5000/- as compensation for mental agony alongwith Rs.2000/- as cost of litigation to the complainant within 45 days from the date of receipt of this order, failing which all the dues shall be realized at the rate of 12% interest per annum. The complainant is also directed to return the defective mobile set to the O.Ps. The case of the complainant is disposed of accordingly.
The order is pronounced on this day of 10th April 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
