Date of filing: 17.01.2017 Date of disposal: 01.06.2018
Complainant: Dipak Shaw, S/o. Dinesh Shaw, resident of Bejdih Colliery (Office Para), PO: Bejdih, PSL Kulti, District: Burdwan, PIN – 713 359.
- V E R S U S -
Opposite Party: 1. The Director, Micromax Informatics Ltd., having its office at 21/14A, Phase-II, Naraina Industrial Area, Delhi, Pin – 110028.
2. M.s. CELL LINK, represented by its Proprietor, having its office at G. T. Road East, Ram Bandhu Talab, Opposite Malti Mangal Plaza, Asansol, District: Burdwan, PIN – 713 303.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: Ld. Advocate, Subrata Ghosh & Debdas Rudra.
Appeared for the Opposite Party No. 2: None (ex parte).
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act alleging deficiency in service and unfair trade practice against the Ops as the Ops have not compensate the complainant. The complainant has prayed for directing the Ops to return the mobile after repairing or replace the same with a new one or to pay Rs. 6,000/- along with interest @10% p.a. by holding them liable for their deficiency in service and unfair trade practice, to pay Rs. 20,000/- towards mental pain and agony and to pay a sum of Rs. 10,000/- as litigation cost.
The fact of the case is that the complainant purchased a Micromax mobile on 25.05.2015 from
Balaji Mobile amounting to Rs. 6000/- being IMEI no. 911343702386766 and there was one year of warranty. The complainant submits that within 5 months from the date of purchase the said mobile phone became dead and on 15.10.2015 the complainant contacted with the OP-2 and the OP-2 taken the mobile into their custody after issuing a job sheet bearing No. E030460-1015-19757835 with a remark “power switches off” and replaced the mobile set with a new one bearing IMEI No. 911343706436534 and ESM No. 911343706536531.
The complainant further submits that from the month of March 2016 it started several problems like bad image of camera, network problem, touching problem. So the complainant visited the OP-2 on 08.04.2016 and the OP-2 after issuing a job sheet bearing No. E030460-0416-22621605 has taken the mobile into their custody. Thereafter the complainant visited OP-2 several times and requesting for returning his mobile but the OP-2 did not pay any heed to such request and lastly on 13.7.2016 the official of OP-2 assured the complainant that they will return the mobile within few days as well as further assured that they will also extend the warranty period for next six months but till date of filing of the case the OP-2 did not return the same. By getting no other alternative the complainant knock the door of the Consumer Affairs Department, Durgapur. The said Department arranged a tripartite meeting by sending them a letter but the OP-2 did not cooperate with the complainant.
The complainant further submits that he is a bonafide consumer of the Ops. The complainant further alleged that the OP-1 supplied a mobile phone with inherent defects and did not bother to solve it. On the other hand, OP-2 inspite of getting several requests and letter of meeting from the C.A. Department did not pay any heed due to which complainant suffered a lot of mental pain, agony and harassment.
Thus the cause of action arose on and from 08.04.2016 when the OP-2 taken back the mobile from the complainant and the same is still continuing.
OP-1 contested the present claim application by filing written version when OP-2 never appeared and also not contested the claim application by filing written version though the complainant has taken proper steps by sending summons to OP-2 and the OP-2 refused to accept the same, accordingly the envelope returned with postal remark “refused”. So the case heard ex parte against OP-2.
The answering OP-1 denies all the material by saying wrong and baseless and nothing shall be deemed to be admitted. The answering OP is the company of international reputation and is committed to provide products of international standards to its customers.
According to OP-1 the complainant has not come before the Hon’ble Forum with clean hands and has infact concocted false and frivolous story and the complainant is therefore guilty of “SuffestioFalsi” and “SupppressioVarl” and is not entitled for any relief.
Op-1 further alleges that OP did not receive any document along with copy of complaint. It is submitted that the service centre is a separate independent entity. So any deficiency or defects caused by its service centre, the answering OP will not be responsible.
Further the OP-1 submitted that the complainant failed to produce any documentary proof to establish manufacturing defects. According to them manufacturing defects cannot be determined without proper analysis.
Accordingly the OP-1 prays before this Hon’ble Forum to dismiss the instant complaint with exemplary cost.
On hearing/perusing the written complaint, as well as, written version this Forum has been pleased to frame the following issues.
- Whether the complainant is a consumer under the Ops?
- Whether the cause is maintainable in the present form?
- Whether the Ops have deficiency in providing service?
- Whether the complainant is entitled to gets relief as prayed for?
Decision with reasons:
All points are taken up together for comprehensive discussion and decision. The complainant has compelled to file the present application claiming himself as bonafide consumer of one Micromax mobile phone purchased on 25.5.2015 at a price of Rs. 6,000=00 from Balaji Mobile and to prove the same he also able to produce document, which shows that he is a bonafide consumer as per provision of Consumer Protection Act and automatically question arises that is whether the present claim application at all maintainable according to law and it appears that the cost price of the mobile and the claim amount are well within the pecuniary jurisdiction of the present Forum and application also filed within time limit i.e. within two years when Ops refused to return the mobile which has taken from the complainant for repairing purpose. The cause of action has also occurred within the territorial jurisdiction of the present forum.
So on considering from all corners it is clear that complainant is able to prove that he is bonafide consumer along with claim application which is maintainable according to law.
Now the question is whether there is any deficiency in providing service by the Ops against the claims or not and it is clear that claimant is able to prove that he is a bonafide consumer by purchasing Micromax mobile phone from the Ops by documents. Complainant is admitted that he went to the OP-2 for repairing the said Micromax mobile phone when it is found dead within five months from the date of purchase (i.e. within warranty period) and at that time OP-2 received the same and also replaced as par terms and condition of warranty period and accordingly he received new phone from OP-2 and again it is found that some problems cropped up from the month of March 2016 like bad image of camera, network problem, touching problem. Then the complainant again went to the office of OP-2 on 08.4.2016 and then OP-2 received the said mobile phone into their custody by issuing a job sheet bearing No. E030460-0416-22621605, dated 08.4.2016 and still from that day they never returned either one repaired phone or one replaced phone, though the complainant for several time visited the office of OP-2 with a request for return his mobile but the OP-2 assured that they will return the said phone within few days but still the date of filing the present application, the OP-2 failed to return the same and as such the said phone is now in the custody of OP-2.
It is also admitted that the complainant purchased the said mobile from Balaji Mobile and went to the shop of OP-2 when the phone found dead for repair and OP-2 also replace the same after issuing job sheet and as such when further problem arises again he went to the office of OP-2 and again OP-2 received the said phone with assurance that they will return the phone and never made any protest by saying that they are not at all responsible for damaged phone. Even OP-2 never appeared though summon served (as it is returned with remark refused).
So from the conduct of OP-2 it proves that intentionally, as well as, illegally kept the said phone without repair or replace as per prayer of the complainant and as such attitude clearly shows their deficiency in proving of service.
Complainant is also able to prove against Ops that being a bonafide consumer he has not received proper service which he is entitled according to law as he purchased the said mobile phone from them and also able to prove from the conduct and attitude of the Ops that there is sufficient cause of deficiency in service and accordingly he is entitled to get relief as prayed for.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 06/2017 u/S. 12 of C.P. Act, 1986 be and the same is allowed on contest against OP-1 and ex parte against OP-2. But when the complainant has never claimed any relief against OP-1 as manufacturer, so the OP-2 is liable to pay entire claim amount to the complainant.
Accordingly, OP-2 is hereby directed to pay a sum of Rs. 6,000=00 as cost price of mobile phone along with 6% interest per annum from 08.04.2016 i.e. the date of deposit of the mobile phone last time to the OP-2 for repairing till realization and further to pay Rs. 2,000=00 as compensation for mental pain, harassment and agony and also pay Rs. 1,000=00 as litigation cost to the complainant within 45 days from the date of passing of this order, in default, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
