DATE OF FILING: 20.03.2014.
DATE OF DISPOSAL: 15.09.2017.
O R D E R
Dr. Alaka Mishra, Member(W)
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging defective in goods and deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he had purchased a Micromax bearing model No.A56 and IMEI No. 911219100123631 mobile phone on payment of Rs. 6,000/-vide cash bill No.6224 dated 27.09.2012 from Tamanna Plus, Sai complex, Shop No.6 (BES MET) Gandhi Nagar, Berhampur. The complainant started facing problem with the application of the mobile phone and its sensor. So he submitted his phone in service station on 01.11.2012. It is also alleged that the O.P.No.2 could not able to help the complainant with his complaint as the O.P.No.2 was a newly established service centre of O.P.No.1, therefore was not fully equipped. The O.P.No.2 instead of informing about their situation wasted the complainant’s time by stating misguiding facts. The complainant on 19th July 2013 filed a complaint with O.P.No.2 and on 9th August 2013 replaced the said mobile handset with the other mobile handset of same model i.e. A56 but again the replaced mobile handset too turned out to be a defective one. The warranty period of the said mobile handset was scheduled to be lapsed on 27th September 2013 which caused the complainant a lot of tension as the replaced handset started showing a new range of problems. However, the complainant got a sign of relief when his request for extension of warranty of the mobile was acceded to and extended up to 27th November 2013. It is also alleged that the replaced handset was no way even near to the standard of a refurbished set. The replaced set use to hand frequently and it was not easy either to make a call or receive a call. The mobile handset given by the O.p.No.2 in replacement of the old mobile handset was even worse and it doubled the problems. The replaced handset owing to the above problems was deposited with the service center on 26th September 2013 which was delivered to the complainant on 8th October 2013 but of no improvement. For the second time, the replaced handset was deposited with the service centre on 19th November 2013 which was delivered to him on 18th December 2013. The complainant tried to make a call and the call was not possible and instead there was a display on the screen “out of service area”. The complainant reported to the service centre and left the handset in their custody. After a couple of days the complainant received a call to come and collect an A58 model handset in replacement of his A56 model handset, to which he refused and insisted for the Canvas Fun A63 model handset and promised to pay the difference if any payable to the company. It has been more than three months now and the complainant have not received his phone back, despite contacting O.P.No.1 and 2 through phone calls and making personal visits to the service centre. The O.P.No.2 expressed helplessness and state that the delay is due to the Company and they are not at fault. The complainant in order to settle the dispute sent a letter on 20.12.2013 to O.Ps requesting them to either refund the amount of Rs.6,000/- or to make replacement of the mobile phone with a brand new phone as specified above. The complainant received a call from the Manager, Service Centre, Berhampur for replacing the A56 model handset with a sealed A58 model handset, to which the complainant refused and insisted for the Canvas Fun A63 model as replacement and promised to pay the difference if any payable to the company. It has been more than six months passed and the complainant has not received his mobile phone back. Alleging deficiency in service on the part of O.Ps the complainant prayed to direct the O.Ps to replace the said mobile handset or to pay Rs.6000/- along with to pay Rs.20,000/- towards compensation for mental agony and litigation cost of Rs.1,000/- in the best interest of justice.
3. Upon notice the O.P.No.1 neither appeared nor filed any written version hence O.P.No.1 is declared set ex-parte on dated 17.05.2016. The O.P.No.2 appeared through learned counsel Dr. L.N. Dash, Advocate and filed written version. In the written version/argument it is stated that the complainant purchased the concerned mobile from Tammana plus as per Annexure-1 at para-3 who is the necessary party but has not been made party to the dispute. The said party could have better explain the complaint since the complainant has not made the party to the said establishment, the complaint fails and liable to be dismissed in limine. At para-9 of the complaint, the complainant stated that the complainant received a call to collect AS8 model handset in replacement of A56 model. But the complainant agreed to the same and went on bargaining violating the terms and conditions. The terms and conditions stated in cash Bill No.6224 dated 27.09.2012 such as: (1) Goods once sold will not be taken back or exchanged, (2) In every case the buyer will examine the goods on taking delivery and thereafter will have no claim against as an account of damage to the goods, shortage in weight or as to the nature of quality of the goods or any other matter whatsoever. The complainant being satisfied with the aforesaid terms and conditions purchased the concerned mobile; hence the O.P.No.2 has no responsibility. At Para-6, the complainant admitted replacement of the mobile handset. It is settled law that warranty or terms and conditions etc. do not prevail for replaced items. The complaint of the complainant fails for non-joinder and mis-joinder of necessary parties and since the replaced items do not avail the benefit of warranty etc. Hence, the complaint of the complainant has no merit and liable to be dismissed in the interest of justice.
4. On the date of final hearing learned the complainant was present in person as well as the learned counsel for the O.P.No.2 are present. We heard argument from both sides at length. We have also thoroughly considered the submission made before us by the complainant as well as learned counsel for the O.P. No.2. On perusal of case record and after going through the written argument and other vital documents on record we found that there is no dispute or doubt that the complainant purchased a mobile on dated 27.09.2012 vide cash bill No. 6224 dated 27.09.2012 for Rs.6,000/- from Tamanna Plus, Sai Complex, Berhampur, description of goods IMEI No. 911219100123631. After using mobile for few months it was first time found defective on 01.11.2012 (automatic switch off) and the complainant approached to O.P.No.2 i.e. Authorized Service Center, Orissa Enterprises, Utkal Ashram Road, Berhampur for repairing. On perusal of the materials on record, it is apparent from the photocopies of job sheets that on 27.9.2012 and 27.11.2012, the defective set was submitted before the service centre for removal of defects. Besides, on those two job sheets, it has also been mentioned that the complainant handed over the mobile to the service centre on 24.12.2012 and the complainant got back on 31.12.2012. Similarly, it was again handed over to the service centre on 20.02.2013 and the service returned to the complainant on 25.03.2013. The other dates of receive and return of the mobile to the service centre was on 12.04.2013 it was received for repairing and returned on 30.4.2013, on 27.5.2013 it was again received for repairing and was returned to the complaint on 30.5.2013. Further it was handed over to the service centre on 19.7.2015 and the service centre delivered the mobile to the complainant on 9.8.2013 after repairing works. It was also produced before the service centre for repairing on 26.9.2013 and returned to the complainant on 8.10.2013 after duly repaired by the service centre. However, despite repeated repairing of the aforesaid mobile set it was found unusable due to continuous problems with the mobile set. On further perusal of the case record, we also find that on 03.10.2013 the company allowed the complainant to avail extended warranty up to 27.11.2013 on the basis POP dated 27.92012. It was also admitted by the complainant that the O.P. company also provided another mobile set bearing Model 58 to the complainant in exchange of the defective mobile set due to non-availability of Model A56 on payment of differential amount towards the new mobile set. But as contended by the complainant, the O.P. No.2 failed to provide a mobile bearing model Canvas A-63 in exchange of the defective model as per the choice of the complainant. However, it is crystal clear from the case record that the O.P. No.2 service centre failed to rectify the problems of the defective mobile phone and even after a new set is provided to the complainant, he is not satisfied with the new model of MicromaxA58 mobile phone and redressed his grievance before this Forum. In the above context of the case and in view of the submission of the O.P. No.2 we find that in this case the O.P.No.2 though time and again contemplated to correct the defect of the said mobile phone but failed to do so which indicates that the mobile set was suffering from inherent manufacturing defect. However, from the case record it is elicited that there is no nothing placed to show that the O.P.No.2 was not acting swiftly to correct the problems of the defective mobile set. In this case, in fact, as per the requests of the complaint the O.P No.2 was acted promptly and tried to rectify the problem of the defective mobile set and even on his own efforts handed over a new model in exchange of the defective mobile set. On the contrary, the O.P.No.1 Micromax Company did not care to appear and contest the case as a result of which he was set ex-part. In the foregoing context of the case, in our considered view we would like to say that in absence of any version on part of O.P.No.1to controvert the contentions of the of the complaint, we are constrained to hold that the Micromax A56 set was having inherent manufacturing defect for which the complaint has been harassed mentally, physically and sustained loss financially. The complainant due to the defect of the mobile set time and again ran after the O.Ps even after investing an amount of Rs.6,000/- but could not get please out of the purchase of the set. In this way he has been sustained mental agony, physical pain and financial loss due to the defective set manufactured by the O.P.No.2. Since the complainant has been suffered due to the O.P. No.1 he is liable to pay compensation to the complainant along with refund of cost of the defective mobile set. As far as the compensation is concerned, in this case, till date the defective mobile set is with O.P. service centre and the complainant was deprived from the benefits even after five years of purchase of the said mobile set, hence the O.P.No.2 Service Centre is liable to return the defective set to the O.P.No.1. In this case the complainant has prayed for Rs.20,000/- towards compensation besides to refund the cost of the defective mobile set. Under this peculiar fact and circumstance, we feel that a sum of Rs.2,000/- will be just and proper towards compensation to meet the ends of justice. Similarly, we are also convinced that the complainant has filed a complaint in this case, for which he has incurred expenses towards filing of this petition, payment of court fees and other incidental expenses and has attended the Forum for the last three years. In this context, we feel that it would be just and proper to award Rs.2000/- towards cost of litigation to meet need of justice.
5. In the light of above discussion and taking into account to the fact and circumstances of this case, we allowed the case of the complaint against the O.P.No.1. Similarly, as discussed above, the O.P.No.2 is directed to return the defective mobile set to the O.P.No.1 since service centre has retained the mobile set till date. The O.P.No.1 is liable to refund the cost of defective mobile set along with to pay a sum of Rs.2,000/- towards compensation and Rs.2,000/- towards cost of litigation.
6. In the result, we direct the Opposite Party No.1 to refund Rs.6,000/- only to the complainant towards the cost of the defective Micromax A56 handset. The O.P.No.1 is also directed to pay a sum of Rs.2,000/- to the complainant as compensation along with Rs.2,000/- towards cost of litigation. Similarly, the O.P.No.2 is directed to return the defective mobile set to the O.P.No.1 since the service centre has retained the defective mobile set till date. The O.Ps are directed to comply the above orders within 45 days from the date of receipt of this order, failing which the complainant is at liberty to recover the same under section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 15th September 2017 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
