Mr. Nitin Gulati son of Sh. Kewal Krishan Gulati, r/o 1298/112-B, Phase-II, Shaheed Karnail Singh Nagar, Pakhowal Road, Ludhiana.
1- Amit Kumar son of Sohan Lal Prop. of M/s B.M. Services, Shop no.6, Pearl Palace, Ghumar Mandi, Ludhiana.
2- Salora International Limited (Branch Office), 682/L, Ist Floor, Model Town, Johal Market, Jalandhar, through its Manager/Authorized Signatory.
3- Salora International Limited (Branch Office), SCO 206-207, IInd Floor, Sector 34-A, Chandigarh.
1- After purchase of mobile Sony Ericsson handset K550i, complainant experienced the same having manufacturing defect. The set was giving problem of poor networking and charging, so it was taken to opposite party no.1 on 2nd June, 2008, who took the handset, assuring to return after repair within 2 days. On 4th June, 2008, the set was returned, but the same problem persisted. Consequently, on 6th June, 2008, the handset was entrusted to opposite party no.1, who then remarked that it would be swapped with another one by opposite party no.2 within a week. After one week, they again took period of 2 days and the swapped handset was delivered to him on 27.6.2008. But that set had also the same problem and it was also not in working condition. Consequently, took up matter through e-mails dated 29th June, 2008 and 6th July, 2008 with opposite party. As services provided by opposite party, were deficient and the handset was not working properly, so served legal notice dated 17.7.2008 on opposite party no.1, requiring them to replace the defective set and pay Rs.10,000/- compensation.
Opposite party had then taken back that handset from the complainant with understanding that he would change it with a new set. The version was believed and the set was entrusted to opposite party no.1 on 8.8.2008 vide receipt no.14195. He promised to handover new handset within 4 days after obtaining it from opposite party no.3. Then approached opposite party several times, but he evaded replacement of the handset and ultimately, refused to give new set. Consequently, in this complaint u/s 12 of the Consumer Protection Act, 1986, for such deficiency of service on part of opposite party, claimed compensation of Rs.10,000/- with direction to replace defective mobile handset with fresh one.
2- Opposite party in their joint written statement, averred that complaint has been filed by the complainant on false, frivolous allegations, so not maintainable. Purchase of set by the complainant and bringing it for repairs, on complaint of defect, is admitted. But claimed that defects so reported, were rectified to the satisfaction of the complainant. The set was sophisticated electronics gadgets, requiring precautions while using the same. Complainant had used the set for more than 10 months and came to them after a long time on 2.6.2008 for replacement. But that request is not genuine, therefore, not tenable. Hence, there is no deficiency in service on their part. It is in these circumstances conceded that on 4th June, 2008, handset after repair was returned to the complainant. There was no problem in the set thereafter. Also denied that swapped handset was given to the complainant on 27.6.2008. Service of registered notice by complainant or handing over set for replacement, are also denied. They have prayed dismissal of the complaint.
3- To prove their respective claims, both parties adduced evidence in the shape of affidavits and documents. We have heard ld. counsel for parties and also scanned the documents and other material placed on the file.
4- Outrightly, we may say after hearing the parties that case of the complainant is fully born out from material brought on the record by him. The handset was purchased by the complainant for Rs.8700/- vide invoice Ex.C1 dated 8.9.2007. Complainant in support of his allegations, has filed his affidavit Ex.CW1.
We have no reason to disbelieve the same. Because his assertion that handset had a defect which was taken to opposite party no.1 and after repair, returned to him, but the defect still persisted and thereafter, the same defective set was swapped with another one by opposite party on 27.6.2008, is born out from the record. Ex.C3 is the service job card dated 27.6.2008 of the opposite party, showing that his earlier set was swapped with another one on account of networking, charging and side key problem in the previous set. So, it means the original handset purchased by complainant vide invoice Ex.C1, was defective and the same was swapped with another set by opposite party no.1.
5- Next allegations of the complainant that swapped set was also having manufacturing defect, forcing him to issue legal notice dated 17.7.2008 Ex.C4 under postal receipts Ex.C5 and Ex.C6 to the opposite party, is also established. Complainant vide that notice, called upon opposite party, to exchange his defective handset with new one and to pay compensation of Rs.10,000/-.
Then complainant claimed that after receipt of such notice, opposite party no.1 obtained the defective handset with a promise to exchange the same with new one. But later on, backed out of such promise. This part of allegations is also thoroughly established from receipt Ex.C2 dated 8.8.2008. Under that receipt, handset of the complainant was received with complaint of not filling battery, USB problem and networking problem. Therefore in these circumstances, we have no hesitation, to believe affidavit Ex.CW1 of the complainant that after receipt of notice Ex.C4, opposite party no.1 took the handset from him and thereafter, never returned it. Complainant in support of his allegations that handset was defective, has placed affidavit Ex.CW2 of his senior Sh. P.S Ghumman.
6- That handset taken for repairs by opposite party no.1, is still possessed by him, who neither repaired nor replaced it with new one.
7- Though opposite party no.1 Sh. Amit Kumar has also filed his affidavit in support of defence. But it deserves no consideration, for the reasons that complainant in these circumstances, has been able to establish beyond doubt that the swapped handset was also found defective. Then he lodged complaint and opposite party no.1 on 8.8.2008, took that handset being defective.
He promised to supply a new handset, which promise was never fulfilled. Sequel to the discussions, we are fully convinced in such circumstances that swapped handset given by opposite party no.1 to the complainant, was also having manufacturing defect. Therefore, it was taken back with promise to exchange the same with new one, which was never done. Consequently, opposite party by retaining defective handset of the complainant, not repairing it or not exchanging the same with new one, certainly deprived the complainant from using the facility, after spending huge amount for purchase of the handset. Therefore, opposite party certainly would be guilty of deficiency in service towards its own consumer.
8- In these circumstances, we allow this complaint and as a result, direct opposite party to provide a new Sony Ericsson K550i mobile handset to the complainant within 30 days of receipt of copy of the order and also pay him compensation for causing harassment, anxiety and sufferance, amounting to Rs.3000/- and litigation costs of Rs.1000/-.