DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.232 of 07-04-2014

Decided on 10-07-2014

Ajay Kumar aged about 30 years S/o Chander Pal R/o Guru Nanak Dev Nagar, Opposite Malwa College, Near NFL, Bathinda.

........Complainant

Versus

Garg Telecom, Near Rose Garden, Opposite Blue Fox Marriage Palace, Bathinda, through its Proprietor/Partner.

.......Opposite party

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

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.A.S Sekhon, counsel for the complainant.

For Opposite party: Sh.Surinder Pal Singh, counsel for the opposite party.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that in the year 2010, one mobile handset of Sony Ericson X10i Luster White bearing IMEI No.359419037967535 was given to the complainant by his friend Paramdeep Singh as gift after its purchase from Bobby Electronics, SCO 106, Sector 35-C, Chandigarh for the amount of Rs.31,000/- vide cash memo/bill No.41056 dated 28.6.2010. Since then the complainant has been using the abovesaid mobile handset for his personal use. In the month of March, 2014 the abovesaid mobile handset started creating problems regarding 'on' and 'off', as sometime it becomes 'off' automatically and sometimes it becomes 'on' automatically. The complainant approached the opposite party for the repair of the abovesaid mobile handset, it retained the same and asked him to visit its shop after 3-4 days. The opposite party issued a job card in this regard to the complainant. Except the abovesaid 'on' and 'off' problem, there was/is no other problem in the abovesaid mobile handset and the same is in good condition. The complainant approached the opposite party and requested it to return the abovesaid mobile handset after its repair, but it told him that it is unable to repair the same. The complainant found that the condition of the abovesaid mobile handset became very bad, as its screen from the outside and inner side had been broken and there was also so many scratches on it. The opposite party again retained the abovesaid mobile handset and asked him to revisit it and assured him that it would pay him the price of the mobile handset in question. The complainant many times approached the opposite party and requested it to refund the price of the abovesaid mobile handset, but the opposite party has failed to refund him its price. Hence the complainant has filed the present complaint to seek the directions of this Forum to the opposite party either to replace the mobile handset in question with new one or to refund its price i.e. Rs.31,000/- alongwith cost and compensation or to give him any other additional, alternative and consequential relief for which he may be found entitled to.

2. The opposite party after appearing before this Forum has filed its written statement and pleaded that the complainant has concealed the fact that the mobile handset in question is 4 years old one and its price is not more than Rs.2000/-. The complainant himself approached the opposite party for the necessary repair of the abovesaid mobile handset with the problem of automatic 'on' and 'off' and at the time of handing over the same, there were scratches as the screen from outside and inner side was badly damaged. After minute checking the opposite party told the complainant that there is major defect in the abovesaid mobile handset and in case he wanted to get it repaired, he has to incur the amount of Rs.1600/- for its repair and he agreed to the same. After rectifying the defect the opposite party handed over the abovesaid mobile handset to the complainant, but it again became swap and the opposite party told him that there is problem in the mobile handset in question as such the opposite party returned it to him and did not charge anything from him for its repair, but the complainant left his mobile handset in the shop of the opposite party and told it that he would file the complaint in consumer Forum and would take the new mobile handset. The opposite party further pleaded that the complainant is not its consumer, as he is not the owner of the mobile handset in question, rather the abovesaid mobile handset belongs to one Paramdeep Singh as per bill No.41-56 dated 28.6.2010, as such he has no locus-standi to file the present complaint. The opposite party further pleaded that it is ready to handover the mobile handset in question to the complainant before this Forum without repair and if this Forum directs the opposite party to repair the abovesaid mobile handset, in that case it is ready to repair the same and the repair expenses be borne by the complainant. The opposite party further pleaded that there is no deficiency in service or unfair trade practice on its part.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. The complainant alleged that his mobile handset of make Sony Ericson X10i Luster White bearing IMEI No.359419037967535 gifted to him by his friend Paramdeep Singh became defective as there was problem relating to 'on' and 'off'.

6. The complainant himself mentioned that the mobile handset in question has been gifted to him by his friend Paramdeep Singh, meaning thereby he has not paid any consideration for the purchase of the mobile handset in question, this fact also stands proved vide Cash Memo, Ex.C4, in which the name and address of the purchaser has been mentioned as Paramdeep Singh and his contact number is also mentioned in it, which clearly shows that this mobile handset pertains to one Paramdeep Singh. There is no affidavit of Paramdeep Singh on file to prove that the abovesaid mobile handset has ever been gifted by him to the complainant. Thus the complainant has failed to prove that how this mobile handset come in his possession. Moreover there is no privity of contract between the complainant and opposite party.

7. As discussed above the complainant is not a consumer as defined under the 'Act'. As per section 2(1)(d) the definition of 'consumer' is reproduced hereunder:-

“Consumer” means any person who -

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.”

Thus the complainant does not fall under the definition of 'consumer' qua the opposite party or said to have availed the service of the opposite party in any manner, the 'service' defined under the 'Act' in section 2(1)(o) is:-

“'Service' means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

Therefore in view of what has been discussed above the complainant has availed the service of the opposite party free of cost as he has not paid any consideration for the mobile handset in question.

Hence the complainant is not a consumer in the case in hand. Thus this complaint fails and is hereby dismissed without any order as to cost.

8. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

10-07-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member