The complainant has filed this case u/s. 12 of Consumer Protection Act with a prayer to direct the O.Ps to refund the price of mobile handset (Microsoft Lumia) amounting to Rs.8, 500/- and also to direct the O.Ps to pay compensation for disturbance of study and communication to the parents and others amounting to Rs. 50, 000/- and Rs. 10,000/- for mental pain and agony and Rs.3, 000/- towards litigation cost.
The case of the complainant, in short, is that the son of the complainant namely Prantik Paul had purchased a Mobile handset (Microsoft Lumia 535 Dual SIM) bearing IEMI No. 35973006786 together with battery and charger from the shop of O.P.No.1 on 30/05/15 for a consideration amount of Rs. 8, 500/- subject to the fulfillment of certain terms and conditions.
Sometimes thereafter from the date of purchase of the said mobile handset, it gave much troubles and as such the complainant informed the matter to O.P No.2. Thereafter, the complainant handed over the said mobile to O.P.No.1 and O.P.No.1 gave a receipt copy of said mobile on 12/01/16 for sending the same to the company for repair of the defects of the mobile handset. The O.P.No.2 also gave a service job sheet to the complainant through O.P.No.1 on 11/02/16.
The further case of the complainant is that the O.Ps demanded repairing charge of said defective handset amounting to Rs. 3, 500/- from the complainant which is ultra virus of the trade practice as per terms of guarantee and warrantee. The complainant requested the O.Ps either to repair or to replace the said defective mobile handset but the O.Ps did not pay any heed to it. The complainant has also sent a legal notice through his Lawyer dated 12/04/16 and inspite of that the O.Ps did neither remove the defects of mobile nor replace the mobile handset.
Hence, this case.
The O.P.No.1 and 2 have appeared before this Fourm and contested this case by filing separate W/V. As per prayer of the complainant the case against O.P.No. 3 and 4 have been struck out vide order No.12 dated 23/02/17.
The case of the O.P.No.1/Proprietor of Mahakal & Loknath Enterprise is that this O.P has admitted that the complainant had purchased the mobile hand set from his shop and he had given all relevant papers with the hand set at the time of purchase of the same. This O.P has also admitted that the complainant came to his shop for repairing of the mobile set and as there is no any authorized service point in Alipurduar district, he sent the mobile set to its authorized service center and as such there is no question for demanding money to repair the mobile set. This O.P averred that he did not violate any trade practice and no question of negligence or deficiency in service on his part. The O.P.No.1 has prayed for dismissal of the case.
The case of O.P.No.2 as per W/V filed by him that the case is not sustainable in the eye of law and the complainant has filed this case by suppressing the real state of affairs and also the case is barred under the principle of estapple, waiver and acquiescence. The case is also not covered by the manufacturer limited warranty as claimed by the complainant. The O.P.No.2 has averred that they are not the seller of the Mobile set ,in question and the same was purchased from O.P.No.1 on 30/05/15 and after a long lapse of time i.e on 12/01/16 the said mobile set was handed over to O.P.No.1 for repairing the same. Thereafter the O.P.No.1 transmitted the set to their service center for repairing and after receiving the mobile set he issued a service job sheet with a target delivery date on 11/04/16. It has been further alleged by this O.P that at the time of receiving the set they found a crack or dent on the top right of the alleged mobile set. Thereafter this O.P sent the set to the authorized service center of Nokia Care at Jalpaiguri for assessment of the actual damage and for its repairing as the set appears to be within “warranty period “.
The further case of O.P.No.2 is that on going through the set, the Service Center of Jalpaiguri reported that the warranty of the company cannot be extended to the set, in question as the set found to be cracked for high voltage damage and consequently they reported that for repairing the mobile set Rs. 3500/- will be required and this fact was communicated by him to the O.P.No.1. This O.P also averred that the mobile set was damaged due to mishandling by the complainant and sustained severe (internal) damage due to high voltage damage and the warranty coverage cannot be extended to the purchaser in any way. This O.P has denied the other allegations as leveled by the complainant and as such he has prayed for dismissal of the case with cost.
The complainant has filed some photocopies documents in support of his case which have been mentioned in Annexure-A/1(Purchase bill ), Annexure-A/2 ( Warranty Card ), Annexure-B (cash memo)and Annexure-C (Job Sheet) and Annexure-D (Lawyer’s Notice).
On the other hand the O.P.No.1 and 2 have not filed any documents in support of their case.
The complainant and the O.Ps have filed evidence on affidavit. On perusal, it appears to us, that those are nothing but re-iterated version of complaint and W/V. Written arguments have been filed by O.P No.2 only. No written argument has been filed by the O.P.No.1. At the time of hearing of argument the O.P.No.1 has submitted that the W/V and the evidence on affidavit filed by him be treated as written argument and such prayer of O.P.No.1 was allowed.
It is also pertinent to mention here that in view of the prayer of the complainant, the name of O.P.No.3 and 4 have been deleted because despite several attempts the notices were not served upon the O.P.No.3 and 4 despite several attempts.
In this context, the following points were necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire photocopies of the documents which filed by complainant. Heard the arguments of both sides.
Point No.1 and 2-
It appears from the record that admittedly the complainant had purchased a mobile handset from the shop of O.P.No.1/Mahakal& Lokhnath Enterprise, Birpara, P.S & Dist. Alipurduar on 30/05/15 with a consideration of Rs. 8, 500/-. Annexure- A/1, A/2 and B support the purchase of mobile handset by the complainant.
Therefore, we have no hesitation to say that the complainant is a consumer.
The cause of action arose within the territorial jurisdiction of this Forum. The shop of O.P i.e O.P.No.1 is situated within the territorial jurisdiction of this Forum. The complainant has claimed Rs.71, 500/- in total which is far less than the pecuniary jurisdiction of this District Forum.
Therefore, having heard the Ld. Agents of both sides and on considering the materials on record, we are in view, that the complainant is a consumer under the C. P. Act and the Forum has sufficient jurisdiction i.e pecuniary and territorial to entertain the complaint.
As such, both the points are decided in favour of the complainant.
Point No.3 and 4-
Both the points are taken up together for the sake of convenience and brevity.
We have gone through the entire materials on record and also considered the submission of both sides.
In the strict technical sense, ’defect’ of any kind has to be given due attention by the O.Ps and all steps need to be taken to remove such defect to make the product “defect free”. If it is not possible to remove the defects, further action has to be taken by way of either replacement or by giving suitable compensation to the complainant to meet the objectives and purposes of C. P. Act, 1986.
In this case, both parties have reiterated their stands. On the one hand, ‘ Nokia Company’ should have explained the exclusion clause to the complainant (as purchaser of mobile handset) who is a minor of 15 years only. On the other hand, the complainant is a student (studying elsewhere) should meticulously go through the terms and conditions of ‘Manufacturers limited warranty’.
On perusal of the materials on record it is appeared that the Mobile Phone Set in question was purchased by the complainant from O.P.No.1 on 30/05/2015. It was handed to O.P.No.1 on 12/01/2016 for repairing. The O.P.No.1 transmitted that Mobile Phone Set to O.P.No.2 for repairing. O.P. No. 2, on receiving the said set issued a service job sheet with giving a target delivery date on 11/04/2016. At the time of receiving the said set in question, it was found a crack or dent on top right of the same. Then O.P.No.2 sent the said set to the authorized service centre of Nokia Care at Jalpaiguri for assessment of the actual damage and for its repairing as the purchase of the set was within “Warranty period”.
Thereafter, the Service Centre of Jalpaiguri after going through the said set, reported that the warranty of the Company cannot be extended as the set found to be cracked and high voltage damaged resulting which Rs.3, 500/- is required for repairing of the set ,inter alia,.
Therefore, explanation of delay in between date of purchase on 30/05/2015 and the date of hand over the set on 12/01/2016 is required for proper adjudication. But on perusal of the complaint, evidence on affidavit and even in written argument of the complainant, it is no where found. As a result, we have no other alternative but to hold that no deficiency in service is found on the part of O.Ps and the complainant is not entitled to relief as prayed for in Toto.
We do not consider oral explanation given by the father of the complainant in reply at the time of hearing of argument and it is rejected.
Thus all the points are discussed accordingly.
Looking at the entire factual matrix of the case, when the O.Ps have expressed that the mobile handset cannot be repaired free of cost because of contributory negligence on the part of complainant, we feel that for the ends of justice, the purchase value i.e Rs. 8, 500/- of mobile set be refunded to the complainant or alternatively the same be returned to him.
In view of the above, both the points are decided in favour of the complainant in part. Considering the detention of the Mobile Phone set, in question, in the custody of O.P.No.2 and positive result of Points No.1 and 2, it is ,
ORDERED
that the C. C No. 13 of 2016 be and the same is allowed in part on contest against O.P.No.1 and 2 but without costs.
The O.P.No.1 and 2 both are directed to refund, jointly or separately, the cost of Mobile set to the complainant bearing 50% share each of Rs. 8, 500/- within 30 days from the date of this order or alternatively return the mobile phone set to the complainant within 14 days from the date of oral or written demand of the complainant through proper receipt and identification, if he so demands,failing which 9% interest per annum be carried on Rs. 8, 500/- from the date of filing this case from 29/04/2016 and in that event both the O.Ps No.1 and 2 shall bear 50% share each of the total amount including interest. If the O.P.No.1 and 2 failed to comply with the order of this Fora, in that event the complainant will be at liberty to put this decree into execution according to law.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me
