JUDGEMENT

          Complainant for her daily use to continue her higher studies purchased one mobile handset on a payment of Rs.17,400/- from M/s S.H. Mumtazuddin Times (P) Ltd.  But since purchased she faced numerous problems in number of times for which the set was given to the authorized service centre 4 timers bearing complaint No. 1843, 2407, 2870 & 2364 and already e-mail and telephonic correspondences were also made with the company and the said set is presently with HTC service centre at M/s S.H. Mumtazuddin Times (P) Ltd with job no. CCU001-0003464 dated 17.12.2013 and the problem is still in existence.  So, complainant lost all her faith over the said handset and so she has no other choice but claim to replacement for the set or to ask refund of the valuation of the Handset and no action has been taken by the op and for which complainant approached before this Forum.

          It is further submitted that grievance serial no. 1211/2013 had already been sent to HTC company and authorized HTC care service centre through speed post bearing No.EW357789805IN dated 08.10.2013 and also M/s S.H. Mumtazuddin Times (P) Ltd vide Regd. Post bearing No. EW357789796IN dated 08.10.2013.  But no action has been taken by the ops for which finding no other alternative, complainant was compelled to file this complaint for redressal and also for negligent and deficient manner of service and for selling a defective set to the complainant.

          On the other hand M/s S.H. Mumtazuddin Times (P) Ltd by filing a reply after receipt of the notice submitted after appearing before this Forum on 26.02.2014 that they shall have to settle the dispute for which they approached before this Forum to ask the complainant to meet with them at their shop to give a chance to the op company of the handset seller to solve the problem.  Subsequently the set seller company sent a letter on 13.02.2014 requesting the complainant to go their shop in between the 4:00 PM to 5:00 PM for solving the problem of the handset of the complainant and that letter was sent on 13.02.2014 during continuation of this case and prior to that complainant filed a written statement stating that before this Forum on 11.02.2014 that when the said handset was not functioning and problem was faced then why the said set has not been returned to the seller company but it was kept confined in her hand though it was defunct and defective and it is specifically mentioned in that reply that most of the consumers are no doubt victimized with such sort of money making temptation and adopted unfair practice and that seller company has also stated in their reply that Consumer Forum will bring warm tribute to her doors by passing a decree for refund of money as well as cost and compensation (doubly financially benefits) despite using the mobile to the last week of warranty or at the end of warranty period and always Umashankar Dutta an authorized agent of M/s S.H. Mumtazuddin Times (P) Ltd appeared and submitted those letters.  But after that on 26.02.2014 op was given a chance for settling the dispute by 17.03.2014 but as because on 13.03.2014 was declared holidays on 01.04.2014 was fixed as last chance for submitting written version by all the ops in default payment of Rs.2,000/- but ultimately ops did not turn up.

          So, the case was fixed for argument hearing because complainant already filed his evidence in chief and on 03.04.2014 argument was heard when ops did not turn up.  Most interesting factor is that notices were served upon all the ops and company seller of the handset i.e. op no.3 M/s S.H. Mumtazuddin Times (P) Ltd appeared and submitted such reply but ultimately did not turn up.  So, finally the case is taken up for final disposal.

                                                  Decision with reasons

          After considering the argument of the complainant and also the complaint including the written version of the op the seller of the handset i.e. op no.3, it is clear that complainant purchased the handset T328F-HTC-Mobile (IMEI No.358835049410217 and it was purchased by the complainant on 24.01.2013 on full payment of Rs.17,400/- and that receipt is marked as Exhibit-A but from that receipt it is found that there is no shop and establishment registration number in the said receipt.

          Fact remains that this complaint was filed by the complainant on 26.12.2013 and from Annexure-C, it is found that before that complainant wrote a letter to the op no.3 the handset seller company stating that the said set is presently with the HTC service centre at Manicktala, Kolkata-700054, Job No.2870.  So, she asked the op no.2 for giving proper relief and op no.3 tried to convince that they also wrote a letter to the complainant after receipt of the letter dated 07.10.2013 but complainant did not turn up and that letter was dated 30.10.2013.  She also lodged a complaint to Asstt. Director, Kolkata, CA & FBP on 10.10.2013 and that grievance case was accepted by the Director of CA & FBP having serial no.211/2013.  Ops were served with notice but they did not turn up when complainant was compelled to file this complaint as per advice of the Director of CA & FBP.

          It is also proved from other annexures that complainant on several occasions since purchase submitted the said handset for repairing and it was repaired but did not function and matter was within the knowledge of the seller company op no.3 but they did not take any action and op no.3 in their reply has stated that they shall settle the matter with the complainant and prayed for time on 26.02.2014 in writing and this Forum gave such time but thereafter they did not turn up.  Fact remains the said HTC company or service centre did not appear and most interesting factor is that op no.3 the handset seller company was given time to settle the matter but they did not turn up and against this present company there are so many cases and in earlier cases the company was given several time for settling other disputes but they did not settle the same and so the decree was passed in those cases and op handset seller company refunded the amount with cost.

          Similar method has been adopted by the op no.3 in this case and they took time to settle and after that op no.3 did not turn up.  Fact remains in this case since purchase of the present mobile hand set, no doubt complainant suffered much with numerous problem in respect of the said handset and handset was given to the service centre as per request of the op handset seller.  But no result was achieved by the complainant to get a defect free handset and as seller op no.3 has his liability to give proper redressal when that was purchased from the op no.3 the handset seller.

          But the said company op no.3 is found silent in all respect but they have admitted that there are defects and they also wrote a letter before this Forum for giving a chance to settle the matter regarding defect handset.  But ultimately has not done it and fact remains the handset is in the custody of the company service care centre at (Wireless Commmunication, 55 Manicktala Main Road, Bagmari North Road, Opp. Loknath Temple, Kolkata – 700054) but that service care centre has not appeared before this Forum or company has not appeared before this Forum.  Though notices were duly served and they have not handed over the said set by replacing the same or after removal of all defects.  So, it is clear that all the ops are very much reluctant to give proper service in respect of purchase of the handset by the complainant on full payment of Rs.17,400/-.

          Truth is that the complainant purchased it on payment of Rs.17,400/- on 24.01.2013 from the op no.3.  but till now the said handset is in the custody of the company’s service centre.  But that has not been returned or defect has not been cured and not even a new set has been replaced.  In the present case we have gathered that op no.3 company after giving assurance in writing before this Forum that they shall have to settle the matter but they have not done and it indicates that all the ops jointly are liable for negligent and deficient manner for service and rendering no service to the complainant in respect of defective handset and fact remains on several occasions the handset was repaired by the company service care centre but no fruitful result was achieved and ops have failed to remove the defects of the handset.

          So, it is clear that it is defective handset and that is in the custody of the company care service centre, they have failed to produce before this Forum through op no.3 to prove that it is free from any defect so considering that fact we have gathered that all the ops are negligent and deficient in rendering service and the said handset is defective one which is proved for which ops are unable to establish that it is no doubt free from any defects and no new handset is replaced by the op seller or the company from or the customer care centre.

          So, it is proved that all the ops have adopted unfair trade practice for selling such defective sets to the customers and it is within their knowledge and op has again committed such unfair trade practice by selling such defective handset though they received Rs.17,400/- from the complainant and it is no doubt unfair trade practice on the part of the op no.3 and such a practice is being continued and it is the third case of op no.3.

          In the result the complainant has been able to prove ops’ deficient and negligent manner of service to the complainant, though it was within the warranty period and she has also proved the act of unfair trade practice as adopted by the ops.  Another factor is also proved that the said set is also in the custody of the service centre and it is within the knowledge of the op no.3, but op no.3 is very much silent though assured that the matter shall be settled before this Forum.  Considering all the above facts, we are convinced to hold that complainant is no doubt to get refund of Rs.17,400/- the value of the said defective set and also for not giving proper service to the complainant and for not appearing before the Director of CA & FBP by the ops for settling the same, complainant is compelled to file this complaint and for which complainant is also entitled to sum of Rs.10,000/- as cost because she is compelled to file the litigation when the ops have their knowledge well that handset was defective from the inception and so further compensation she is also entitled to.

          So that complaint succeeds.

          Hence, it is

                                                           ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against op no.3 and same is allowed against exparte op nos. 1 & 2 with cost of Rs. 5,000/- each.

          Ops are jointly and severally hereby directed to refund the sum of Rs.17,400/- within 15 days from the date of this order and particularly that amount shall be paid by the op no.3 at once and op no.3 shall have to release that handset from the company’s care service centre because handset is in the custody service centre of the company.

          For harassing and causing mental pain and agony to the complainant, ops are jointly and severally are directed to pay a sum of Rs. 5,000/- each within 15 days from the date of this order to the complainant.

          For adopting unfair trade practice repeatedly by op no.3 company and also by other ops they shall have to pay punitive damages to the extent of Rs.10,000/- each and this portion of this order is passed to check the continuous habit of adopting unfair trade practice by the op no.3 particularly and also other ops and same shall be deposited to this Forum in the name of President, DCDRF, Kolkata Unit-II.

          Ops are jointly and severally shall comply this order within 15 days failing which for disobeyance and non-compliance of Forum’s order by each and every op they shall have to pay penal interest @ Rs.200/- each per day till full satisfaction of this Forum’s order and if it is collected it shall be deposited to this Forum.

          Even if ops are reluctant to comply the order in that case the penal procedure u/s 27 of C.P. Act 1986 shall be started against them for which they shall be liable in future.