Delhi

North East

CC/9/2017

Devender Kr. - Complainant(s)

Versus

The Mobile Care - Opp.Party(s)

10 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 09/17

 

In the matter of:

	Devender Kumar E-156A, Gali No. 4, G-Block, Shastri Park, Delhi 110053	Complainant
	Versus
1         2	M/s The Mobile Care B-36, Guru Nank Pura, Opp. V3S Mall, Near Maharaja Banquet Hall, Laxmi Nagar Delhi 110092   The Manager Micromax Ltd. Micromax House, 90-B, Sector-18, Gurugram, Haryana 122015	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

17.01.2017 07.09.2018 10.09.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member:-

ORDER

1. The case of the complainant is that he had purchased a Micromax Mobile Model Yureka Plus 5510 A – IMEI No. 91147610433234 manufactured by OP2 from M/s. Setia Store vide retail invoice no. 7459 dated 04.02.2016 for an amount of Rs. 11,500/-. However, after 2-3 months, the above mobile set was not getting charged through its charger and the complainant had to use another mobile’s charger to charged it and continued to do so due to paucity of time to get it replaced. It has been submitted further that on 14.07.2016, the complainant went to the OP1 i.e. authorized service centre of OP2 and apprised the staff about the problem being faced about the charger of the mobile phone. It was informed by the staff of the service centre that data cable of the charger was damaged and new cable would be supplied by them to the complainant. However, another staff member of OP1, who was sitting adjacent to the staff attending to complaint, asked the complainant to show his mobile phone and thereafter started fiddling with the mobile keys of the handset and told the complainant that there was another problem in the mobile set of complainant besides the problem of charger and as such the mobile set and charger would have to be sent to OP2. It has been submitted further by the complainant that relying on the trustworthiness of OP2 and statement of staff of OP1, the complainant deposited the mobile phone and charger at the service centre and a job card was issued with direction to complainant to come after 15-20 days to collect the mobile. However, when the complainant visited the OP1 on 11.08.2016 to collect the mobile set, he was informed by the staff of OP1 that the mobile set had not been repaired yet and he would be provided another mobile set bearing IMEI No. 911401501978405, 911401501983447 in lieu of it. When the complainant checked the mobile set which was provided to him, he found that it was the old, dirty mobile set which was not working properly and was also getting over-heated. Therefore, the complainant refused to accept it and asked  for return of his earlier mobile set which was new and was working fine except charging problem. However, the OP1 issued another job card on 11.08.2016 to the complainant and took the old and dirty mobile set which was provided to him, stating that he would be informed afterwards of repairs of his mobile set. The complainant has further submitted that he was called again on 19.08.2016 by OP1 to the service centre where yet again, the old mobile phone which was being earlier provided to him on 11.08.2016 was again giving to him. The complainant again checked it, and he found that the same was not working properly. Thereafter, the complainant again requested to OP1 to return his mobile phone so that he could use it with the new data cable after purchasing the same from the market as he had given his mobile set in working condition to OP1 but despite repeated requests, OP1 did not return the mobile set to the complainant and asked him to talk to Shri Mukesh Kumar, Manager. When the complainant spoke to Shri Mukesh Kumar, he was informed that his earlier mobile set will not be given back to him and as such he should take another mobile set. The complainant agreed to accept the same on condition that he be provided the other mobile set in new and sealed packed box and the warranty be given from the date of 14.07.2016 i.e. date of purchase of his earlier mobile set. Thereafter, the above mobile set was again deposited by OP2 and another job card was issued with the assurance that the complainant shall be informed accordingly afterwards. The complainant has further submitted that he was called by the OP1 on 16.09.2016 to collect the mobile set but when he went to collect the mobile phone, he was provided another similar looking but different mobile set on the pretext that it was his same mobile set. However, the complainant checked the IMEI No. and found it to be different and therefore refused to accept it. Upon this, the service centre staff of OP1 misbehaved with him stating that the above mobile set belonged to the complainant and when the complainant threatened to call the police, the staff of OP1 stated that he may call no. 100 but he will have to accept the mobile set being provided to him. Feeling harassed by the attitude of OP1, the complainant lodged a written complaint to the Manager of OP2 on 28.09.2016 but no cooperation was offered by the OP1 or OP2 despite receipt of the same on 29.09.2016. Thereafter, complainant made a complaint again with the Manager of OP2 with a copy to OP1 on 05.11.2016, which was received by the OPs on 07.11.2016. It has been further submitted by complainant that he was called again and again to collect the mobile phone but whenever he went to the service centre, he was told that his mobile phone had not yet been received and some times another old mobile set was provided to him by the OP1 for which reason, the complainant was forced to buy a new handset of another company. It has been further submitted that the OP1 had misappropriated his mobile set and the same has not been returned to him despite the fact that his earlier mobile set was working properly except the charging problem and alleged that the OP1 misguide the customer in to believing a functional mobile set to be a defective one only to handover a defective mobile in its place and then misbehaved with the customer and fail to redress their grievance in collusion with OP2. Therefore the complainant was constrained to file the present complaint before this Forum praying issuance of directions to OPs to refund the cost of the mobile set amounting to Rs. 11,500/- and to pay to the complainant Rs. 25,000/- towards compensation for harassment and Rs.25,000/- towards litigation expenses.

The complainant had attached a copy of retail invoice bearing no. 7459 dated 04.02.2016 towards the purchase of above said mobile set for an amount of Rs. 11,500/-, copy of job sheets dated 14.07.2016, 11.08.2016 and 19.08.2016 alongwith copies of representations/complaints lodged by him to the Micromax House on 28.09.2016 and 05.11.2016 in addition to postal track reports for proof of delivery to OPs.

2. Notice was issued to OPs on 17.01.2017 for appearance by OP1 & OP2 on 16.02.2017 and the same was received by OP1 on 24.01.2017. Fresh notice was issued on 09.03.2017 to OP2 for appearance on 06.04.2017 which was duly received on 17.03.2017 as per track report of postal department. However, OP1 failed to appear and therefore was proceeded against ex parte vide order dated 06.04.2017. OP2 was proceeded against ex-parte vide order dated 27.04.2017. However its counsel appeared later in the date on 27.04.2017 and requested for fresh notice in the name of M/s. YU Tele-ventures on the address provided by complainant and offered settlement which could not be effected due to the absence of the complainant. Accordingly, another notice was issued on 02.05.2017 to M/s YU Tele-ventures for appearance on 29.05.2017 however none appear on its behalf.
3. Evidence by way of affidavit was filed by complainant in reiteration of his grievance made in the complaint and exhibited original retail invoice, job sheets and track report of postal department showing the receipt of his representation by OP. The matter was put up for conciliation before National Lok Adalat on 11.11.2017 but the settlement failed.
4. Written arguments were filed by complainant to buttress his complaint against the OPs.  Written arguments were also filed by counsel on behalf of OP2 wherein it was stated that complaint was liable to be dismissed on the ground of non-joinder of party as the product purchased by the complainant was YU-Yureka 5510-A, manufactured and marketed by YU Tele-venture Pvt. Ltd, a Chinese company which is a subsidiary of OP2 but a separate entity and the complainant had not impleaded the manufacturer and retailer as necessary parties to the present complaint and instead impleaded OP2 while OP2 had nothing to do with the product manufactured and marketed in the brand name of YU. Further, OP2 argued that the complaint was for forgery and criminal breach of trust not covered under CPA 1986, and as such not maintainable in the present Forum and liable to be dismissed against OP2. It was further argued / contended by OP2 that the relief claimed by complainant was not maintainable because the complainant had neither alleged any specific manufacturing defect in the mobile set nor claimed that the alleged defect in the mobile set was not rectifiable and has not filed any documentary evidence i.e. authenticated opinion from authorized laboratory in support of his allegations and as such the allegations made by the complainant are baseless and liable to be rejected by the Hon’ble Forum. It was also submitted that this Forum has no territorial jurisdiction to try and entertain the present complaint as the complainant had not impleaded the retailer as necessary party to the present complaint and the service centre (OP1) was not doing business within the territorial jurisdiction of Hon’ble Forum and prayed for dismissal the complaint and pass appropriate orders.
5. We have heard the rival contentions of the parties and have carefully perused the documentary evidence submitted by the complainant. In the absence of any rebuttal by OP1 and OP2 due to both having being proceeded against ex-parte and closure of their defence, as also non-submission of documentary evidence against the contentions made by complainant, we are of the considered view that the complainant had successfully established that his mobile set was not repaired and returned by OP1 despite being within warranty period and also non-return of his mobile set to the complainant inspite of repeated requests amounts to deficiency of service and unfair trade practice on the part of OP1 and OP2 despite complaints lodged by the complainant to both to redress his grievance.
6. We therefore direct OP1 and OP2 jointly and severally to refund the amount of the purchased mobile set to the complainant amounting to Rs. 11,500/-. We further direct OP1 and OP2 jointly and severally to pay the compensation amounting to Rs. 5,000/- towards the mental harassment and agony caused to the complainant and Rs. 2,000/- towards cost of litigation to the complainant.
7. Let the order be complied within a period of 30 days from the date of receipt of this order failing which the OP1 & OP2 shall be liable to pay penal interest @9% per annum on the total awarded amount of Rs. 18,500/- from the date of passing of this order till realization.
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9. File be consigned to record room.
10.  Announced on  10.09.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member