Date of Filing: 16/09/2016 Date of Final Order: 20/04/2017
Sri Debangshu Bhattacharjee, Member.
The brief fact of the complaint as culled out from the record is that on 13/11/2015 the Complainant purchased one mobile set cost of Rs.5,100/- from M/S BANIK P.C.O, Dinhata. From the date of purchased the said mobile set of the Complainant was running properly but on 01/06/2016 the Complainant noticed that the Memory card of the said mobile was not supporting. Then the Complainant contacted with M/S BANIK P.C.O from which the said mobile was purchased and the Complainant was informed by the aforesaid mobile shop that to handover the mobile set to Mahamaya Enterprise, Cooch Behar i.e. the O.P. No.1, M/S Mahamaya Enterprise is the service centre of the O.P. No.2. Accordingly, on 01/06/2016 the Complainant handed over the said mobile to the O.P, Mahamaya Enterprise, Cooch Behar and the O.P issued a Job Card bearing No.E030461-0616-23658199.The O.P No.1 received the same mobile set and point out that “5801 MEMORY MMC REJECTED/INVALID”. After repairing the said handset, the O.P. No.1 delivered the same to the Complainant on first week of august 2016. After such repair the same problem again cropped up instantly in front of the O.P-No-1 .The said defects were arisen within the warranty period and presently the O.P. No.1 again received the said mobile for repairing. In the long run, the Complainant made several contact orally and over telephone to the O.P. No.1 & 2 for narrating the incident with the requested to replace the defective mobile or solve the said defects but all efforts were in vain.
The complainant in his complaint petition stated that finding no other alternatives he was bound to purchased another mobile hand set value Rs. 1300/- on 15/02/2016. (Annexure -3)
On 20/03/2017 the Ld. Agent for the O.P-No-1 brought the mobile handset and wanted to return the same to the complainant but the complainant declines to received the same on the basis of his previous experience.
Due to such activities of the O.Ps, the Complainant is in hard-up and facing hindrance as well as suffer irreparable loss due to malfunctioning of the said Mobile phone. The Complainant also suffered from acute mental pain and agony, pecuniary loss and unnecessary harassments by adopting unfair trade practice and deficiency in service of the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps for refund of value of the Mobile Phone. i.e. Rs.5,100/-, and also to pay (i) Rs.10,000/- as compensation for mental pain & agony and unnecessary harassment, (ii) Cost towards litigation, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, Mahamaya Enterprise has contested this case by filing W/V denying all material allegations contending inter-alia that the instant case is not maintainable, the Complainant has no cause of action to file the instant case and the case is bad for mis-joinder and non-joinder of necessary parties.
The specific case of the O.P. No.1 is that the Complainant brought the Mobile handset on 01/06/2016 complaining “5801 MEMORY MMC REJECTED/INVALID” problem The O.P. No.1 received the said handset by issuing a Job Card and sent the said handset to the Head Office for repairing. The O.P. No.1 is a well reputed businessman and the Complainant has filed the instant case with false, fabricated and baseless allegations. The Complainant after repeated call did not receive back the said hand set from the O.P. No.1.
Ultimately, the O.P. No.1 prayed for dismissal of the case.
Summon upon the O.P. No.2 i.e. Officer-in-Charge, Micromax Informatics Ltd., 21/14 – A, Phase – II, Naraina Industrial Area, Delhi-110028. was duly served but the O.P. No.2 did not turn up to contest this case. Accordingly, the case was heard ex-parte against the O.P. No.2.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the entire relevant documents of the parties in the record along with Written Version, Evidence on Affidavit filed by the Complainant and O.P. No.1.
The O.P No-1 was neither present on the date fixed (05/04/2017) for hearing of argument nor they filed written argument. We heard the argument for the complainant and fixed the date for delivery of final order.
Point No.1.
Complainant purchased one mobile set cost of Rs.5,100/- from M/S BANIK P.C.O, Dinhata from his present address i.e. with the jurisdiction of this Forum. The said mobile set was found defective within eight months from its purchase and for that reason he visited the local service centre i.e. the O.P. No.1, M/S Mahamaya Enterprise is the service centre of the O.P. No.2. The Complainant purchased the mobile set for his own use. As such he is a consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986. Thus, this point is decided in favour of the Complainant.
Point No.2.
The Complainant purchased the alleged mobile set from M/S.BANIK P.C.O, Dinhata with proper purchase bill. The service Centre (Mahamaya Enterprise) is situated within the jurisdiction of this Forum. The Complainant is also the ordinarily resident of Cooch Behar District. Mahamaya Enterprise is the service centre of the O.P. No.2. Therefore, it can be called the Branch Office of the O.P. No.2. The claim amount of the Complainant is below Rs.20,00,000/-. Hence, this Forum has territorial as well as pecuniary jurisdiction to try this case. This point is disposed of accordingly.
Point No.3 & 4.
Undisputedly, the Complainant purchased a mobile hand set of Micromax Company on 13/11/2015 by making payment of Rs.5,100/-. The said set bears the warranty period of one year from 12/11/2016.
It is also not in dispute that the seller, M/S.BANIK P.C.O, Dinhata issued a Cash Memo in favour of the Complainant. (Annexure -2).This seller is not a party in this case.
The point of the dispute is that the said mobile hand set within a short period started problem as alleged by the Complainant in his complaint as well as in evidence on affidavit. The Complainant handed over the said set to the O.P. No.1 for servicing but the O.P did not return the set to the Complainant after servicing.
In the present case the Company, the Officer-in-Charge, Micromax Informatics Ltd. did not come forward even after appearing to challenge the case hence; the case proceeded with Ex-parte against the O.P. No.2.
The O.P. No.1, Service Centre has contested the case and by filing W/V contending inter-alia that the case is not maintainable before this Forum.
It is the case of the O.P. No.1 that the Complainant has filed this case for his illegal gain. The Complainant purchased the mobile hand set on 13/11/2015 and first time he visited this O.P. No.1 on 01/06/2016 i.e. after 8 months of purchasing the said set. Thus, it is crystal clear that during this long period the condition of the said hand set was OK and the Complainant was in use the said set.
We have gone through the record very carefully. Perused the documents, evidence on affidavit filed by the parties. It appears that the O.P received the mobile hand set from the Complainant on 01/06/2016 and issued Job Card with reported problem “5801 MEMORY MMC REJECTED/INVALID”
In their W.V and evidence on affidavit the O.P-No-1 stated that they received the hand set from the complainant on 01/06/2016. After repairing the same mobile set they returned the same to the complainant. After receiving the mobile set the complainant found that the problem has not been solved. In such condition the complainant returned the mobile set to the O.P.-No-1 instantly.
As per warranty condition the service centre had the duty to return the set in workable condition after proper servicing. Thus, the contention of the O.P. No.1 has not been proved also the O.P. No.1 fails to file any cogent documents. The O.P. No.1 received the set but did not provide actual service to remove the defects in the hand set. Till date the mobile hand set in question is lying with the O.P. No.1 since 01/06/2016. Thus, the deficiency in service of the O.P. No.1 cannot be ruled out also the Complainant is deprived from using the mobile set that he purchased with Rs.5,100/-.
From the discussion made herein before, we find that the problem in the mobile hand set cropped up within the warranty period thus it is reasonably be presume that the said set has some inherent defect. Besides it is proved that the O.P. No. 1 did not render proper service to the Complainant and thus, the act and conduct of the O.P. No. 1 falls under Section 2(1) (g) of C.P. Act 1986. Company is liable to replace the defective set or make return the price of the said goods. It is the duty of the service provider to render proper service to the customer free of cost within the warranty period as per warranty conditions. As and when the problem cropped up within the warranty period the consumer has every right to go service centre to avail proper service for which the plea as taken by the O.P. 1 is not sustainable. More so, the O.P. No. 1 admitted the problem in the hand set. In this case the O.P. No.1 did not give proper service also kept the mobile hand set in their custody for a long period without repair the same. Thus, deficiency in service of the O.P. No. 1 cannot be ruled out.
The O.P No-1 was absent on the date fixed (05/04/2017) for hearing of argument and did not file written argument. We heard the argument for the complainant and fixed the date for delivery of final order.
The O.P. No. 2, the manufacturer of the set did not contest the case that means the O.P. has nothing to challenge the allegation of the Complainant.
The prayer of the Complainant is entitled to return back the total purchased amount of the disputed hand set with compensation by the O.Ps. In this juncture, it is also pertinent to mention that only being the service provider the O.P. No.1 has no liability to return back the cost of the Mobile only the manufacturer/Company is liable to return the price of the set with compensation to the Complainant. The O.P. No. 1 only to take positive step to send the set to the O.P. No. 2 for replacement also liable to compensate the Complainant for his harassment. Both the O.Ps are jointly liable to settle the dispute.
In the light of the foregoing discussion we are in considered view, that only refund of the cost of the mobile hand set will met the justice as and when it is already settled in a case reported in 2009 CTJ 180 (CP) (SCDRC) that- in a dispute of a defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution as such goods may not be up to the satisfaction of the consumer.
Be that as it may, on foregoing discussion, circumstances to the case, together with the attitude and thoughts of the parties in litigation we have reason to believe that there is some defect in the mobile hand set and the O.Ps. are liable to sort out the problem.
As it is already proved that the O.Ps have deficiency in service, the Complainant is entitled to get relief with compensation.
Thus, both the points are decided in favour of the Complainant.
Hence,
Ordered,
That the present Case No. CC/90/2016 be and the same is allowed on contest against the O.P. No.1 with cost of Rs.1,000/- and Ex-parte against the O.P. No.2 with cost of Rs.2,000/-.
The O.P. No.2 is hereby directed to refund Rs.5,100/- to the Complainant along with interest @ 10% p.a. from 01/06/2016 till payment is made. The O.P. No.1 is further directed to pay compensation of Rs.1,000/- to the Complainant and the O.P. No.2 shall pay Rs.3,000/- to the Complainant as compensation for his mental pain and agony. The entire order shall be complied by the O.Ps jointly and/or severally within 45 days from this day, failing which they shall pay Rs.25/- to the Consumer legal aid account for each day’s delay.
Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
