DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.85 of 3.4.2007<br /> Decided on : 10.7.2007 <br /> <br /> Jaswinder Singh S/o Sh. Dalbir Singh, R/o Village Bhitiwala, Tehsil Malout, District Muktsar. <br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. Unique Traders, 17-18, Mall Road, Bathinda through its Partner/Proprietor.<br /> 2. Nokia Care Centre, Guru Kashi Marg, Opposite MSD Public School, Bathinda through its Proprietor.<br /> 3. Nokia India Pvt. Ltd., Raddison Hotel Commercial Plaza, N.H. 8, Mahilpur, New Delhi-110037 through its Managing Director.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainants : Sh. G.S. Chahal, Advocate<br /> For the opposite parties : Sh. Anil Joshi, counsel for opposite party No.1 <br /> Sh. G.S. Bhasin, counsel for opposite party No.2<br /> Sh. Prem Pal Singh, counsel for opposite party No.3 <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to replace the defective Mobile Handset with a new one of this model or in the alternative to return Rs. 2,600/- alongwith interest @ 24% P.A from the date of purchase till actual realization; pay Rs. 5,000/- as compensation on account of physical and mental harassment and Rs. 3,000/- as litigation expenses.<br /> 2. Briefly put the case of the complainant is that opposite party No.3 is the manufacturer of Nokia mobile handsets. Opposite party No.1 is dealing in the sale of these handsets. Opposite party No.2 is the authorised service centre of opposite party No.3. On the basis of tall claims made by opposite party No.1 regarding Nokia mobile handsets, complainant had purchased Nokia mobile handset 1100 from it (opposite party No.1) on 19.11.2005 for a consideration of Rs. 2,600/- vide bill No. 660. There was warranty of 12 months on this handset from the date of its purchase. After about eight months from the date of purchase, it started giving trouble as its battery failed to charge. It used to remain uncharged and off despite putting it on charge. It used to become hot after it was put on charge. Accordingly, he could not use it. He approached opposite party No.1 and apprised it of the defects. He was told to visit opposite party No.2 for getting the defects removed. In the month of July, 2006, he visited opposite party No.2. After checking, opposite party No.2 kept it for doing the needful and directed him to visit after a week. After the expiry of this period, handset was handed over to him by saying that it was set right and would not give problem as fault was removed. After about 20 days thereafter handset again started giving the same problem. Opposite party No.2 was approached and was apprised of the defect. It was kept by opposite party No. 2 with direction to him to come after 2/3day for collecting it. In the month of August, 2006, he came to opposite party No.2 for collecting the repaired set. He was informed that set has some manufacturing defects which cannot be rectified. Accordingly, it was returned. He (complainant) came to opposite party No.1 with request to replace the defective set. It retained the set and assured that it would be got replaced from the company. He was told to come after one month. After about one month, he came to opposite party No.1 for collecting new mobile handset as per assurance. No satisfactory reply was given. To the contrary, defective handset was returned. Opposite party No.1 flately refused to replace it. Thereafter, complainant got served legal notice upon the opposite parties, but to no effect. He alleges that he has undergone physical and mental harassment due to deficiency in rendering service and unfair trade practice on the part of the opposite parties.<br /> 3. On being put to notice, opposite party No.1 filed reply taking preliminary objections that complaint is not maintainable; it has been filed to harass it for wrongful gains; he has concealed material facts and has not approached this Forum with clean hands; he has got no locus-standi and cause of action to file complaint; he is estopped from filing the complaint by his act and conduct and complaint is false and frivolous. On merits, it admits that opposite party No.3 is the manufacturer of Nokia mobile handsets and that it (opposite party No.1) is dealing in this brand of handsets. Complainant had purchased mobile handset for a consideration of RS.2,600/- vide bill No. 660 dated 19.11.2005. There was warranty of 12 months on this mobile handset from the date of purchase. Complainant had not obtained in writing from it regarding the replacement of the mobile handset due to the manufacturing defect. It admits that complainant had come to it and had apprised it about the reply given by opposite party No.2 and had made request to replace the set with a new one. Mobile handset in working condition was handed over to the complainant. It denies that there is any manufacturing defect in it. Inter-alia, its plea is that it is in working condition and complainant is unnecessary harassing it. Remaining averments in the complaint stand denied.<br /> 4. Opposite party No.2 filed its version taking legal objections that complaint is not maintainable in the present form; it is false and vexatious and set is out of warranty as it has become non functional due to over heating. It admits that it is the authorised centre of opposite party No.3. Limited warranty of 12 months, if any, is given by the manufacturing company only. It denies that complainant approached it in the month of July, 2006. He had come to its office with reported fault of over heat and not charging on 31.8.2006. Job sheet No. 48 was issued. On examination, it was found to be over heated which normally occurs due to voltage fluctuation which is out of warranty provided by opposite party No.3. Complainant was requested to pay Rs.250/- as repair charges. Instead of getting the set repaired, he took it with him. It refutes the remaining averments in the complaint.<br /> 5. Opposite party No.3 filed separate reply of the complaint stating that complaint is liable to be dismissed as it is false, sham and frivolous; it cannot be held responsible for irresponsible, careless and negligent handling of the mobile set by the complainant. Warranty period covers the range of faults that ensue normally from mechanical functioning of the mobile set without any interference or outside influences; this Forum has got no jurisdiction to entertain and try the complaint. It is added by it that it is always willing to perform its obligation under terms of warranty and redress the grievances of the complainant and is still willing to service/repair the set to his satisfaction as per terms of warranty. In the facts and circumstances, it becomes important to send the alleged defective handset for proper analysis/test to the appropriate lab to ascertain whether it is defective or not. Question of replacement of the handset and refund of its price, does not arise.<br /> 6. In support of his allegations and averments in the complaint, Jaswinder Singh complainant tendered into evidence photocopy of bill dated 19.11.2005 (Ex.C.1), photocopy of legal notice dated 28.10.2006 alongwith postal receipts No. 2109 and 2110 (Ex.C.2), his own affidavit (Ex.C.3) and photocopy of warranty card (Ex.C.4).<br /> 7. On behalf of the opposite parties, reliance is placed on the affidavits of S/Sh. Swadesh Goyal, Proprietor of opposite party No.2, Ravish Kumar, Legal Representative and Hari Singh, Proprietor of opposite party No.1 which are Ex.R.1, Ex.R.3 & Ex.R.5 respectively and photocopies of out of warranty service job sheet (Ex.R.2 & Ex.R.4). <br /> 8. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the complainant and opposite parties No. 1 & 2.<br /> 9. Some are the undisputed facts in this case. They are that Nokia mobile handset was purchased by the complainant from opposite party No.1 vide bill No. 660 dated 19.11.2005 for a consideration of Rs.2,600/-. Copy of the bill is Ex.C.2. There was warranty of 12 months on this handset. Copy of the terms and conditions of the limited warranty is Ex.C.4. <br /> 10. Learned counsel for the complainant vehementally argued that there are some manufacturing defects in the handset purchased by the complainant. Opposite party No.2 which is the service centre of opposite party No. 3 could not rectify the defects. Opposite party No.2 had apprised the complainant that mobile handset has some manufacturing defects and as such, it cannot be repaired. Defects had crept in the set within the period of warranty. In these circumstances, when set has not been repaired and is not repairable, there is deficiency in service on the part of the opposite parties. <br /> 11. Learned counsel for opposite party No.1 contended that opposite party No.1 has simply sold the mobile handset to the complainant and it has nothing to do with the matter in question. Moreover, opposite party No.1 has left the dealership of Nokia and matter is intersee between the complainant and opposite parties No. 2 & 3.<br /> 12. Mr. Bhasin learned counsel for opposite party No. 2 vociferously argued that handset is not covered under the terms and conditions of the warranty. In other words, set is out of warranty. Complainant had approached opposite party No.2 only once i.e. on 31.8.2006. After examination, it was found to be over heated which normally occurs due to voltage fluctuation which is not covered under the limited warranty provided by the company and also as per clause 7(a) of Ex.C.4 For this, he drew our attention to Ex.R.1 & Ex.R.2 i.e. affidavit of Sh. Swadesh Goyal, Proprietor of opposite party No.2 and out of warranty service job sheet respectively.<br /> 13. We have considered the rival arguments. Complainant has tried to make out a case of manufacturing defect in the mobile handset. His version is that in the month of August, 2006 when he had gone to opposite party No.2 for getting the set, he was informed that there are some manufacturing defects in it which cannot be cured. He has not named any official of opposite party No.2 who allegedly disclosed manufacturing defects in the set. Had there been manufacturing defects, the question of its use by the complainant for about eight months after the date of its purchase, did not arise. <br /> 14. According to opposite party No.2, mobile handset was brought to it by the complainant and it was out of warranty as it became non functional due to over heating which normally occurs due to voltage fluctuation. Complainant was requested to pay Rs. 250/- for repair charges, but he did not agree and took away the set with him. From this plea of opposite party No.2, it is evident that there is defect in the mobile handset of the complainant and it is repairable. Even learned counsel for opposite party No.2 conceded at bar that defect is curable, but against charges. Now question is as to whether the set is out of warranty. The reply to our minds is in the negative. It was purchased on 19.11.2005. There was limited warranty on it for 12 months from the date of purchase. According to opposite party No.2, set was brought to it on 31.8.2006. Fault reported was that it was not charging. Copy of the out of warranty service job sheet is Ex.R.2. It does not bear the signatures of the complainant or any official of opposite party No.2. No details as to how estimate of Rs.250/- has been arrived at have been given in it. In the absence of such details, opposite party No.2 is making the set out of warranty which cannot be accepted. Contention of the learned counsel for opposite party No.2 that set has become out of warranty due to acts of God, carries no conviction. Set cannot be said to have become defective due to the acts of God or due to other acts which are beyond reasonable control of Nokia. Fact that set is not charging and it becomes hot after it is put on charge and it goes off cannot be held to be the acts of God or the acts beyond the control of Nokia nor can it be concluded in this situation that set has gone out of warranty. When it is repairable as conceded by the learned counsel for opposite party No.2 and as is evident from the reply filed by opposite party No.2, opposite parties were bound to repair it within the warranty period i.e. within 12 months after the date of purchase. This has not been done. Accordingly, deficiency in service on the part of the opposite parties is established as both dealer and manufacturer are jointly and severally liable to the consumer in view of the authority Ashok Khan Vs. Abdul Karim and others-2005 CTJ-1207 (CP)(NCDRC). So far as opposite party No. 2 is concerned, it is also liable for the deficiency being the agent of opposite party No.3. <br /> 15. Now question arises as to which relief should be accorded to the complainant. As discussed above, complainant could not establish manufacturing defect in the mobile handset. Accordingly, it cannot be got replaced nor can its price be got refunded alongwith interest. However, in the facts and circumstances, direction deserves to be given to the opposite parties to repair mobile handset of the complainant and make it functional without any charges and opposite party No.3 to extend the validity period of warranty for a period of six months after set is repaired and made functional. Act and conduct of opposite parties must have caused him harassment for which he deserves some compensation which we assess as Rs.500/-.<br /> 16. No other point was urged before us at the time of arguments.<br /> 17. In the result, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Complainant and opposite parties are directed to do as under :-<br /> ( i ) Complainant would handover his mobile handset against receipt to opposite party No.2 within seven days from the date of receipt of copy of this order for repairs and making it functional. <br /> ( ii ) Opposite parties would repair the mobile handset of the complainant without receiving any charges from him and make it functional within a period of 30 days from the date of its receipt from the complainant. <br /> ( iii ) Opposite party No.3 to extend the limited warranty period for six months from the date the repaired/ made functional set is handed over to the complainant. <br /> ( iv) Pay Rs. 500/- to the complainant as compensation under section 14 (1) (d ) of the Act.<br /> ( v ) Compliance with regard to payment of costs and compensation be made within 30 days from the date of receipt of copy of this order failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 18. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> Pronounced (Lakhbir Singh)<br /> 10.7.2007 President<br /> <br /> <br /> (Dr. Phulinder Preet) (Hira Lal Kumar)<br /> Member Member<br /> 'bsg'<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />