Complaint No.94/20.5.2009.

Decided on : 31.12.2009


Sh.Darshan Singh son of Sh. Kartar Singh, a resident of village Ghrangana Post Office Dulowal, District, Mansa.


.... Complainant.

VERSUS

1. M/s Jippy Telecom, Baran Hattan Chowk, Mansa through its proprietor.


2. Pagaria Electronics Private Limited, 2335, Raja Park, Rani Bagh, New

Delhi 110 034.


.... Opposite Parties.

Complaint under Section 12 of the Consumer Protection Act, 1986.

.......

Present: Sh. S.K.Singla, Advocate counsel for the complainant.

Sh.R.S.Sodhi, Advocate counsel for the OP No.1.

OP No.2 exparte.

Before: Sh.George, President.

Sh.Sarat Chander, Member.

ORDER:-


Sh.George, President:

The present complaint has been filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as Act) against the opposite parties with the allegations, that he approached the OP No.1 for the purchase of a 'Nokia' make mobile handset on 22.3.2009, but the OP No.1 forcibly sold him a "Pagaria' brand mobile handset for a consideration of Rs.2,700/- vide bill No.693 dated 22.3.2009. The complainant is a poor man and earn his livelihood by plying a three wheeler on hire. The OP No.1 further made a promise to replace the mobile handset, if not found functioning satisfactorily. Since the date of its purchase, the said mobile handset did not function properly, as such, the complainant, feeling dissatisfied, approached the OP No.1 for its replacement, but the OP No.1 failed to fulful his promise and has been rather lingering on the matter on one pretext or the other. Ultimately, when the OP No.1 flatly refused to replace the mobile handset, despite his requests time and again, the complainant served a legal notice dated 22.4.2009 upon the OP No.1, but he has not even bothered to reply the same. On his every visit to the premises of the OP No.1, the complainant had to spend his hard earned money and has thus suffered a financial loss of Rs.600/- on his visits. The OP has thus indulged in unfair trade practice and the complainant has filed the present complaint for replacement of the mobile handset with a new one or in the alternative to refund the price thereof and has claimed compensation to the tune of Rs.5,000/-, alongwith litigation expenses in the sum of Rs.2,000/-.

2, None appeared on behalf of the OP No.2, as such, he was proceeded against exparte on 30.10.2009. The OP No.1 contested the allegations of the complaint and filed written reply taking preliminary objections that the complaint is bad for non joiner of the manufacturing company; that the complainant has not disclosed the details of defect in the mobile handset; that the complainant has not produced any report of the expert; that in the event of any defect in the mobile set, only the manufacturing company is liable for the consequences and that the OP has sold the mobile handset to the complainant in sealed condition, as received by him, from the manufacturing company.

3. On merits it is pleaded that the complainant has purchased the mobile set from his shop of his own free will without any coercion and he never lodged any complaint about defect in the mobile handset with the replying OP. All other facts narrated by the complainant not admitted as correct.

4. In order to prove the allegations, the complainant brought on record photocopy of notice Ext.C-1, photocopy of bill Ext.C-2, photocopy of postal receipt Ext.C-3 his own affidavit Ext.C-4, and closed the evidence, whereas the OP in order to controvert the evidence of the complainant, has brought on the record, his own affidavit Ext.OP-1.

5. We have heard the learned counsel for the parties and perused the entire record of the case carefully.

6. Learned counsel appearing on behalf of the complainant has vehemently contended, that the complainant purchased one "Pagaria" Mobile handset No.3527/0030007007 vide Bill Ext.C-2 dated 22.3.2009 from the OP No.1 on his assurance, that in case there will be any defect, he will replace the same. From the day the mobile handset was purchased, it started troubling the complainant. The complainant approached the OP No.1 and told him that the handset is not properly working and he is facing a lot of problem and, therefore, he requested him to relieve him from the problems he is facing. He further urged that when the OP No.1 did not listen to the request of the complainant, the complainant served legal notice Ext.C-1 dated 22.4.2009, upon him by registered post. Despite receiving the registered notice, the OP No.1 had not cared to replace the mobile handset. He further urged, that the complainant, being a poor person, had suffered loss to the tune of Rs.600/- as and when he visited the shop of the OP No.1 for replacement of his mobile handset. He had to miss his work as a result of which he had to suffer his daily wages to the tune of Rs.150/- per visit. Learned counsel urged that the complainant, being an illiterate person, cannot definitely know about the defect in the mobile handset, but he continued to approach OP No.1, who did not care to even examine the mobile set, to know the real defect of the mobile handset and, therefore, the complainant has been put to unnecessary inconvenience, mental torture and harassment by the conduct and attitude adopted by the OP No.1. He has also urged that since the OP No.1 is a dealer of OP No.2 and had sold the hand set in order to earn his own profit, therefore, he cannot shift the liability for replacement of the handset solely on OP No.2, who is the manufacturer, who has been proceeded against exparte.

7. Learned counsel appearing on behalf of the contesting OP vehemently controverted the arguments put forward by the learned counsel for the complainant and he strongly urged that the complainant purchased the mobile handset from OP No.1 at his own and he never approached OP No.1 for any problem in the handset. Even the complainant has failed to mention what kind of defect is troubling him in the handset and, even if, there is any defect, OP No.1 is not liable to replace it as it is OP No.2 only who is responsible, being manufacturer, to replace the handset. Infact the complainant never approached or told OP No.1 about any defect in the handset.

8. We have taken into consideration the rival contentions of both the learned counsel for the parties.

9. The complainant has specifically mentioned in his complaint, as well as, in his affidavit Ext.C-4, that he purchased the hand set from OP No.1, which fact infact is also not denied by OP No.1. The OP No.1 has taken the plea, that complainant never approached him or told him about any defect in the handset he purchased. It appears that OP No.1 has taken totally a false defence, that complainant never approached him or told him about any defect in the handset, because the complainant, in para 6 of his complaint, has specifically mentioned, that he served a legal notice upon OP No.1 for replacement of the defective mobile handset on 22.4.2009, but the OP No.1 has not even cared to reply the same. In support of this version, the complainant has also placed a copy of the legal notice Ext.C-1 dated 22.4.2009. In reply to para 6 of the complaint, the OP No.1 in his reply has simply denied this fact. However, during the course of arguments, it has been admitted by the learned counsel appearing on behalf of the OP No.1, that legal notice was received by OP No.1, but he did not sent any reply. Even the facts narrated in para No.4,5 and 8 of the complaint, are simply denied by the OP No.1, without leading any evidence, to prove his denial to the hilt. The complainant on the basis of the facts he has narrated in his complaint, which are duly supported from the documents Ext.C-1 to C-4, has proved that he purchased the mobile handset from OP No.1, which is manufactured by OP No.2 and it started troubling to the complainant within less than one month of its purchase. He approached the OP No.1 for replacement of the same, but OP No.1 has shown his adamant attitude.

10. As such, the OP No.1 and OP No.2 have rendered themselves deficient in service and both the OPs are liable for replacement of the handset with a new one with fresh warranty from the date of replacement as per the warranty condition within 45 days. The complainant has been put to unnecessary harassment, mental torture, tension and inconvenience not only due to the conduct of the OP No.1, but also due to the conduct of OP No.2, as OP No.2 despite due service, did not appear before this Forum to admit the genuine claim of the complainant. As such, both the opposite parties are liable to pay jointly and severely an amount of compensation, which we assess, in the facts and circumstances of the case, to Rs.5,000/- alongwith litigation expenses to the tune of Rs.2,000/-. The compliance of the order be made by the Opposite parties within a period of 45 days from the date of receipt of the copy of this order which shall be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.