Date of Filing: 28-09-2016 Date of Final Order: 05-09-2017
Sri Asish Kumar Senapati, President
This is an application u/s 12 of CP Act, 1986.
The complaint case is as follows:
One Pradip Deb (hereinafter referred as Complainant) purchased one Micromax nitro 4G-E455 Mobile set on 30.11.2015 through online and there was problem in March, 2016, for which the Complainant deposited the Mobile set with M/s Mahamaya Enterprise, Service Centre of Micromax Co., (hereinafter referred as OP No.1) for repair and on receipt of the same after repair, the Complainant also found problem in the Camera. Inspite of taking 21 days’ time by the Service Centre, the Complainant did not receive the Mobile set after repair, even after expiry of warranty period. Hence, the Complainant has prayed for Rs.15,000/- which he paid to the Ops, Rs.10,000/- as compensation for mental agony and harassment and also appropriate amount for cost of litigation.
The case was filed on 28.09.2016. The OP No.1 put its appearance on 02.12.2016 through his Ld. Agent but subsequently, it did not file w/v and the OP No.2 did not put his appearance inspite of receipt of notice. Hence, the case was proceeded ex-parte against Ops. The Complainant filed evidence on affidavit on 03.08.2017 in support of his claim. On perusal of the complaint petition, the following points are framed for proper adjudication of this case.
POINTS FOR CONSIDERATION
- Is the Complainant either a Consumer as per Section 2(1)(d) of the C.P. Act, 1986 or a Complainant as defined U/s 2(1)(b)(iv) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service and/or unfair Trade Practice, as alleged by the Complainant?
- Whether the complainant is entitled to get any relief/reliefs, as prayed for?
DECISIONS WITH REASONS
Point No.1 & 2.
The Complainant submitted that he is a consumer under the Ops as he purchased one Micromax nitro 4G-E455 Mobile set on 30.11.2015 through online payment of Rs.9,690/- and he deposited the said Mobile set with the OP No.2 for servicing. He says that he is a consumer under the Ops.
Perused the complaint petition and Annexure 1 and Annexure-2 i.e. Xerox copy of job sheet dated 23.06.16 and Xerox copy of Tax Invoice dated 30.11.15. As the Complainant purchased the Mobile set from the OP No.2 and as the OP No.1 received the said Mobile set for repairing on 23.06.16, the Complainant is a consumer under both the Ops in terms of 2(1)(d) of the C.P. Act, 1986. On perusal of the complaint petition, it appears that the Office of the OP No.1 is within the territorial jurisdiction of this Forum and the claimed amount is also within the pecuniary limit of this Forum. Hence, we are of the view that the Complainant is a consumer u/s 2(1)(d) of the C.P. Act, 1986 and this Forum has both territorial and pecuniary jurisdiction to entertain the case.
Point No.3 & 4.
The Complainant submitted that he did not get back his Mobile set for which he applied before the Assistant Director, Consumer Affairs & Fair Business Practices, Regional Office, Cooch Behar vide complaint No.3573/2016 and the mediation was held on 20.09.2016 when the representative of the OP No.1 wanted time upto 20.10.2016 but the Complainant was not agreed (Annexure 4). It is contended that he has not yet received any response from the Ops for which he prayed for (1) Rs.15,000/- as compensation regarding payment of the Complainant for purchase of the Mobile set (2) Rs.10,000/-for compensation for mental agony and harassment and (3) sufficient compensation for cost of litigation. It appears from the Annexure-2 that the Complainant purchased a Mobile set through online being handset No.VP54292, IMEI No.911438702490137 on 30.11.2015 on payment of Rs.9,690/-. There is no proof to establish the fact that the Complainant paid Rs.15,000/- to the Ops because the job sheet (Annexure-2) also revealed that the OP No.1 had not even remitted any cost of repair. There is no limitation mentioned in the job sheet for repair of the Mobile set but it can be expected that a customer may suppose to get back his Mobile set after repair within a reasonable time. The OP No.1 received the Mobile set on 23.06.16 and today is 05.09.17 i.e. even after the lapse of more than one year, the Complainant did not get back his Mobile set after repair without any reason assigned by the OP No.1 or OP No.2. The OP No.1 and 2 have no courage either to contest the case or to submit their w/v, if they had anything to say against the case of the Complainant.
Considering the facts and circumstances, we have no hesitation to hold that the OP No.1 has deficiency in service as it did not return the Mobile set even after lapse of more than one year to the Complainant from the date of receipt of the Mobile for repair. The OP No.2 is the manufacturer of the Mobile set and the Complainant has stated nothing against the OP No.2 regarding its deficiency in service. So, we are of the view that the OP No.2 has no deficiency in service. The Complainant has described a cock and bull story in his prayer No.1 stating that he paid Rs.15,000/- to the Ops. The document filed by the Complainant regarding online payment for purchase of the Mobile set reveals that he paid Rs.9,690/- (Annexure-2). The Forum takes the fact a serious exception and it can be safely said that the Complainant has stated in para-1 of the prayer portion in an exaggerated manner with a view to monetary gain only. We have valid reason to minimize the compensation for deficiency in service as the Complainant has exaggerated the fact that he paid Rs.15,000/- to the Ops. We think that the OP No.1 may be directed to get back the Mobile set being No. VP54292, IMEI No.911438702490137 on 30.11.2015 which he received on 23.06.16 for repair (Annexure-1) in a running condition after repair on receipt of charges of parts etc., if any within a period of 45 days to the Complainant and OP No.1 may also be directed to pay Rs.500/- to the Complainant for deficiency in service and Rs.500/- as cost of litigation.
Reasons for delay: The complaint was filed on 28.09.2016 and was admitted on 04.10.2016. The OP No.1 put his appearance on 02.12.2016 and filed a petition challenging the maintainability of the case on 02.03.2017 and the same was rejected vide order dated 11.04.2017. Ultimately, the case was heard ex-parte against both the Ops. This Forum has taken endeavour to dispose of the case as expeditiously as possible in view of the Section 13(3A) of the CP Act and the day-to-day order will speak for itself.
In the result, the Complaint case succeeds in part. Fees paid are correct.
Hence,
It is Ordered,
That the complaint case be and the same is hereby allowed ex-parte against the OP No.1 with cost of Rs.500/-and dismissed ex-parte against the OP No.2 without cost.
The OP No.1 is directed to hand over the Micromax nitro 4G-E455 Mobile set to the Complainant, which it received through job sheet on 23.06.2016 (Annexure-1) on receipt of charges of spare-parts etc. if any as per terms and conditions of warranty Card and the job sheet dated 23.06.17.by 45 days from the date of this order. The OP No.1 is also directed to pay Rs.500/- for deficiency in service and Rs.500/- for litigation cost to the Complainant by 45 days from the date of this order.
The Complainant is not entitled to get any relief against any of the Ops. The OP No.1 shall comply the order by 45 days from the date of this order, failing which he shall have to pay Rs.25/- for each day’s delay and the said accumulated amount shall be deposited in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Post forthwith, free of cost, for information & necessary action, as per rules. The copy of the Final Order will also be available in the following Website:
confonet.nic.in.
Dictated and corrected by me.
