| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.137 of 27-04-2015 Decided on 14-01-2016 Amarjeet Singh Sohal aged about 50 years S/o Makhan Singh R/o H.No.26650, Street No.3, Amarpura Basti, Bathinda. ........Complainant Versus 1.M/s Kansal Telecom, Subhash Market, Shop No.1, SSD Sabha Market, Bathinda, through its Proprietor/Partner. 2.Adev Electronics, Sony Authorized Service Centre, 19416, St.No.3, Bibi Wala Road, Bathinda, through its Proprietor/Partner. 3.Sony Mobile Communications (India) Pvt. Ltd., 2nd Floor, A-131 Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044, through its M.D/Chairman. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For the Complainant: Sh.Pardeep Sharma, Advocate. For Opposite parties: Opposite party No.1 ex-parte. Sh.Vinod Garg, Advocate for opposite party Nos.2 & 3. ORDER M. P. Singh Pahwa, President The complainant Amarjeet Singh Sohal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties M/s Kansal Telecom and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he purchased one Sony Xperia model No.D2302 of white colour for Rs.20,000/- vide invoice No.4 dated 18.8.2014 from opposite party No.1, manufactured by opposite party No.3. At the time of selling of abovesaid mobile handset, opposite party No.1 assured him that it is of best quality and there is no complaint regarding its functioning. It is alleged that after purchase, the complainant starting using the mobile handset as per his requirement, but it did not turn up to be of good quality as it used to switch 'on' and 'off' automatically and also used to 'hang' and then he was required to switch off and re-start it. He approached opposite party No.1 and complained about the defects regarding functioning of the mobile handset, but opposite party No.1 asked him to approach opposite party No.2, the authorized service centre of opposite party No.3. In the month of October 2014, he approached opposite party No.2, which provided formal service and assured him that now there would be no problem in the functioning of the mobile handset, but again in the month of November 2014, it started creating the same problem of auto switch 'on' and 'off'. Ultimately, in the first week of January 2015, the mobile handset became switched off and did not power on. He again approached opposite party No.2, it after checking the mobile handset, retained the same with it vide job sheet dated 5.1.2015 and assured him to get the needful done within the period of one week. Thereafter he has been visiting the office of opposite party No.2 time and again to enquire about his mobile handset, but to no effect. He also requested opposite party No.2 either to replace the defective mobile handset with new one or in alternative to refund its price i.e. Rs.20,000/-, but opposite party No.2 did not pay any heed to his request and mobile handset is lying with it. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and has claimed compensation to the tune of Rs.50,000/- in addition to directions to opposite parties either to replace the mobile handset with new one or in alternative to refund its price i.e. Rs.20,000/-. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.1. As such, ex-parte proceedings were taken against opposite party No.1. However, opposite party Nos.2 and 3 appeared through their counsel and contested the complaint by filing their joint written version. In written version, opposite party Nos.2 and 3 pleaded that opposite party No.3 is a company incorporated under the provisions of Companies Act, 1956 having its office at A-131 Mohan Co-operative Industrial Estate, Mathura Road, New Delhi. They are authorized dealer and service centre. Reply is being filed on behalf of opposite parties jointly. It is clarified that every averment, statement, allegation and contention made by the complainant, which is contrary and inconsistent to what is being stated in the reply are denied and no allegation, statement and contention contained in this complaint should be deemed admitted, save and except those specifically admitted to be true and correct. After pleadings these facts, opposite party Nos.2 and 3 have raised preliminary objections that as per record, the complainant has purchased one Sony Xperia M2, model No.D2302 on 18.8.2014 after a detailed demonstration of the features, functions, applications by opposite party No.1 and after satisfying himself with the condition of the mobile handset. Opposite party No.3 provided warranty for one year on mobile handset from the date of its original purchase and liability strictly lies in accordance with terms and conditions of the warranty provided by it. It cannot be held liable for the claims falling outside the scope of warranty. Opposite party Nos.2 and 3 have also reproduced relevant terms of warranty. It is pleaded that after purchase of mobile handset in question, the complainant approached authorized service centre of opposite party No.3 on 13.5.2015 with the complaint of 'no power'. On inspection, officials of opposite party No.2 duly swapped the 'Board'(spare Part) of mobile handset by replacing it, but the complainant never turned back to collect his mobile handset despite receiving several telephonic intimations from opposite party Nos.2 and 3. The complainant has mentioned several visits, subsequent to 13.5.2015. However, he has failed to place those job sheets on record. He has incorporated manipulated and contrary facts in his complaint as opposite party Nos.2 and 3 did not find any record of the complaints subsequent to 13.5.2015 as alleged by him. Opposite party No.3 during the pendency of this complaint vide letter dated 9.6.2015 intimated the complainant to procure his mobile handset from opposite party No.2, but he did not pay any heed towards it. The complainant has not annexed any report of an independent expert as defined U/s 2(1)(a) of 'Act' with regard to any alleged defect in the said unit. Opposite party Nos.2 and 3 have also quoted some cases law to support their submissions and in the end, prayed for dismissal of complaint. Parties were afforded opportunities to produce evidence. In support of his version, the complainant tendered into evidence his own affidavit dated 23.3.2015, (Ex.C1); bill, (Ex.C2) and job sheet, (Ex.C3). In order to rebut the claim of complainant, opposite party Nos.2 and 3 tendered into evidence affidavit of Priyank Chauhan dated 16.6.2015, (Ex.OP3/1); photocopy of resolution, (Ex.OP3/2); photocopy of important information, (Ex.OP3/3) and photocopy of letter, (Ex.OP3/4). We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for complainant has submitted that the material facts are not in controversy. It is not disputed that the complainant purchased one mobile handset on 18.8.2014. The complainant deposited his mobile handset with opposite party No.2 on 5.1.2015, Ex.C3 is service job sheet, which proves this fact. It is not disputed that the mobile handset is still with opposite party No.2. Opposite party Nos.2 and 3 have taken false plea that the mobile handset is ready and complainant has not come forward to collect it. There is nothing on record to show that they have ever intimated the complainant or asked him to come to collect his mobile handset. Therefore, it proves deficiency in service and unfair trade practice on the part of opposite party Nos.2 and 3. As such, complaint be accepted and relief be granted. On the other hand, learned counsel for opposite party Nos.2 and 3 has submitted that the complainant has not come before this Forum with clean hands. The contents of the complaint will prove that he is insisting for replacement of the mobile handset in question with new one or refund of its price. Of-course, the complainant has alleged number of defects in the mobile handset, but as per job sheet, his complaint was only regarding 'no power' and only for this problem, he is not entitled for replacement of the mobile handset or refund of its price. As per terms and conditions of warranty, the company warrants product is free from design, materials and workmanship at the time of its original purchase. It is further mentioned that if during warranty period, product fails to operate due to design, materials and workmanship, it will be option of the company either to repair/replace or to refund the purchase price of product. The complaint was only regarding 'no power' and complaint has already been addressed. The complainant has not got issued any legal notice to opposite parties before filing of this complaint. He has alleged manufacturing defect in the mobile handset, but there is no expert evidence by him to prove any manufacturing defect in it. We have given careful consideration to these submissions. Admitted facts are that the complainant purchased one mobile handset, manufactured by opposite party No.3 on 18.8.2014. As per complainant, there was problem of switched 'on' and 'off' and 'hang'. Complainant has not produced any expert evidence to prove this defect. However, he has tendered into evidence job sheet, but its perusal reveals that the complaint was only regarding 'no power'. Of-course, stand of opposite party Nos.2 and 3 is that the mobile handset was repaired on that very date and complainant has not come forward to collect it. Although, opposite party Nos.2 and 3 have produced copy of letter dated 9.6.2015 to prove that the complainant has not come forward to collect his mobile handset despite intimation given to him, but no postal receipt or other document is brought on record to prove dispatch of this letter. Moreover this letter is during the pendency of complaint. In these circumstances, it can be concluded that opposite party Nos.2 and 3 have caused delay in doing the necessary repair. Therefore, this also amounts to deficiency in service on their part. Opposite party Nos.2 and 3 have also not produced the mobile handset in question to prove that it has already been repaired, to corroborate their stand. For the reasons recorded above, the complaint is partly accepted with Rs.2500/- as cost and compensation against opposite party Nos.2 and 3 and dismissed qua opposite party No.1 without any order as to cost. Opposite party Nos.2 and 3 are directed to handover the mobile handset in question to the complainant after repair as per terms and conditions of warranty. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Pronounced in open Forum:- 14-01-2016 (M.P Singh Pahwa) President (Sukhwinder Kaur) Member (Jarnail Singh) Member
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