Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case is that the Complainant named Sri Abir Chanda purchased a mobile vide model No. One- Plus 9R 8GB/ 128 GB colour- Blue bearing IMEI No. 86938805592, 869388055927304 worth Rs.39,500/- vide invoice dated 07.09.2021 and Complainant paid the amount to the O.P. No.1 (As per Annexure-A). After lapse of warranty period i.e. after one year and three months of purchasing the said handset became dead. The Complainant took the said handset to its authorised service centre i.e. O.P. No.2 and after receiving the said defective handset the O.P. No.2 issued a Device Receiving Form dated 30.01.23 (Annexure-B). The O.P. No.2 assured the complaint to deliver the said handset within seven days but instead he delivered the said handset after lapse of 21 days. The Complainant’s mobile had no issue apart from the mother board of the said handset did not function properly before said handset was brought before the O.P. No.2 but it is very disheartening that after receiving the said handset by the Complainant after completion of its repairing many performance issues like display not working, battery related problem as well as speaker related problem were noticed by the Complainant and the battery was changed without the consent of the Complainant and accordingly, the Complainant paid Rs.12,800/- to the O.P. No.2 i.e. Rs.9,000/- for mother board and Rs.3,800/- for battery (As per Annexure-C issued by O.P. No.2 dated 30.01.23). Complainant being unsatisfied and getting frustrated with the O.P’s conduct sent complaint before the O.Ps through Gmail regarding all the fact on 2nd March, 2023 (Annexure-D is the copy of Gmail complaint). Complainant also filed written complaint before the Assistant Director, Consumer Affairs and Fair Business Practices, Cooch Behar on 05.04.23 (Annexure- E is the copy of written complaint filed before CA & FBP, Cooch Behar dated 05.04.23). Eventually, the said mediation miserably failed due to non response on the part of the O.Ps (Annexure-F being the copy of the order of mediation). So, the Complainant states that the above activities are clearly deficiency in service. The cause of action in the present case arose on 07.09.21 when the Complainant purchased the said mobile from O.P. No.1 and on 30.01.23 when the O.P. No.2 received the said mobile as well as received service charge and on 02.03.23 when the Complainant sent an email and lastly on 05.04.23 when the Complainant filed a written complaint before CA & FBP, Cooch Behar and it is still continuing. The Complainant therefore prayed for an order against the O.Ps to pay a sum of Rs. 1.5 Lakhs as compensation for unfair trade practice of the O.Ps and also to pay Rs. 2 Lakhs as deficiency in service and further to pay a sum of Rs. 2 Lakhs as compensation for mental pain, agony and unnecessary harassment and Rs. 15,000/- as cost of litigation.
As per order No.04 dated 02.11.2023 the case is decided to be heard ex-parte against O.P. No.1 & 2.
The Complainant in order to establish the claim adduced evidence by filing evidence on affidavit and document before this Commission.
Perused the pleadings of the Complainant and the documents in the case record. Heard, the argument advanced by Ld. Advocate for the Complainant.
The statement made in the evidence on affidavit are absolutely in consonance with the averments made in the complaint petition.
The OP did not controvert the specific allegation of the Complainant since the OP decided not to contest the case and did not file any written version.
Annexure-A being the copy of Tax Invoice dated 07.09.2021.
Annexure- B being the Device Receiving Form dated 30.01.2023.
Annexure- C being the copy of Tax Invoice issued by the O.P. No.2 dated 30.01.2023.
Annexure- D being the copy of Email sent by the Complainant dated 02.03.2023.
Annexure- E being the copy of written complaint filed before CA & FBP, Cooch Behar dated 05.04.2023.
Annexure- F being the copy of order of mediation dated 12.06.2023.
The aforesaid document could not be controverted by these O.Ps and its averment stands un-challenged. But after close scrutiny of the different documents it transpires that the Complainant made payment for Rs. 12,800/- to the O.P. No.2 and the O.P. No.2 issued tax invoice as service charge. But the service was not done properly by the O.P. No.2 and the mother board of the said mobile was not functioning properly though the Complainant purchased the mobile phone from O.P. No.1 amounting to Rs.39,500/-. After receiving the mobile set from O.P. No.2 the Complainant was not satisfied with the service of the O.P. No.2 and the battery was changed without the consent of the Complainant. So, seller and repairer both are liable. Having assessed the entire oral evidence and evidence in the form of affidavit in chief and documentary evidence of the Complainant it stands well established that the O.Ps failed to discard the specific allegation against them. So, the O.P. No.2 is liable to prove proper service to the Complainant i/d to refund the compensation. The O.P. No.1 is liable on the ground that he has not made any defence case and the case has been heard ex-parte against him. So, O.P. No.1 is liable to pay the litigation cost.
Hence, it is
Ordered
That the Complaint case No. CC/70/2023 be and the same is allowed ex-parte with cost of Rs.5,000/-.
The O.P. No.2 is directed to repair the said mobile of the Complainant at free of cost within one month from the date of Final Order in default to refund Rs.12,800/- to the Complainant. The O.P. No.2 is further directed to pay Rs.20,000/- for unfair trade practice and mental pain, agony and sufferings which caused due to deficiency in service and O.P. No.1 is directed to pay Rs.5,000/- for litigation cost within 30(thirty) days from the date of Final Order in default the entire awarded amount shall carry an interest @ 8% per annum from the date of passing the Final Order till the date of realization.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
