DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 451 of 24-07-2014

Decided on 15-12-2014

Makhan Lal aged about 60 years, S/o Sh. Labh Ram, R/o Shop No. 14-B, Grain Market, Bathinda.

…...Complainant

Versus

Naresh Telecom, Haziattan Dana Mandi Road, Bathinda, through its Proprietor/Partner

Vintage Communication, 1st Floor, Shop No. 12, Shakti Complex, Bathinda, through its Manager/Partner/Proprietor

Karbon Mobiles# 39/13 Off 7th Main, HAL 2nd stage Appareddy Palya, Indira Nagar, Bangalore 560 038, through its Managing Director/Authorized Signatory

.......Opposite parties

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

Quorum :

Surinder Mohan, President

Smt.Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Rakesh Gupta, counsel for complainant.

For the opposite parties : Sh. Gurjant Singh, counsel for opposite party No. 1.

Sh. N S Narula, counsel for opposite parties No. 2 & 3.

O R D E R

Surinder Mohan, President

Brief facts are that complainant purchased one mobile hand set manufactured by opposite party No. 1 vide bill dated 6-4-14 for Rs. 3200/-. There was one year warranty on this mobile phone. This mobile hand set started creating problems i.e. sometimes its display became blank; sometimes its keypad was not working properly; it used to hang and sometimes its incoming voice became very low. The son of the complainant approached opposite party No. 1 who asked to approach opposite party No. 2 being authorized service centre of opposite party No. 3. Opposite party No. 2 after checking mobile, repaired the same and also issued a job card dated 22-5-2014. He also assured that it may not cause any problem in future. Mobile set again created same problem. Opposite party No. 2 was again approached on 29-5-2014. The engineer of opposite party No. 2 retained the mobile set and told the complainant to visit after 1-2 days and also issued job card dated 29-5-2014. Opposite party No. 2 told the complainant that they have installed software on the above said mobile hand set and now the mobile is without any type of fault. However, the said problem remained as it is. There was one new problem regarding switching off-on of the said mobile hand set automatically, which shows that there is some manufacturing defect in the said mobile, which opposite party No. 2 inspite of its best efforts, failed to remove from the said mobile hand set. The complainant again approached opposite party No. 2 on 9-6-2014 and requested either to repair the said mobile hand set properly or to replace the same with a new one or to refund the price. Opposite party No. 2 retained the mobile hand set and asked that they will send the said mobile for its repair and requested to wait for 10-15 days and also issued a job card dated 9-6-2014. The officials of opposite party No. 2 conveyed that said mobile hand set cannot be repaired as there is some manufacturing defect and delivered some other mobile with new IMEI number of black colour. Opposite party No. 2 mentioned the entry on the bill on 17-7-14 and also put their stamp on the bill. Then son of the complainant tried to use the mobile hand set but the same was also defective one so it was returned back to opposite party No. 2 at the spot and requested either to replace the mobile hand set with new one or to refund the price i.e. Rs. 3200/- as the same is within warranty period. Opposite party No. 2 did not pay any heed to the requests of the son of complainant and refused to replace or refund the price of the mobile. The complainant also approached opposite party No. 1 who also did not pay any heed to the requests of complainant. That the said act and conduct of opposite parties clearly shows that there is deficiency in service and unfair trade practice on the part of the opposite parties due to which the complainant as well as his son is suffering mental tension, botheration, agony, harassment and financial loss etc., That complainant is entitled to compensation to the tune of Rs. 50,000/- alongwith cost of Rs. 5500/- A prayer has been made accordingly.

On notice, opposite parties contested the complaint. Opposite party No. 1 took several legal objections that complainant has got no cause of action; complaint is not maintainable; there is no deficiency in service on the part of opposite party No.1; complaint has been filed on wrong facts by misusing the provisions of CP Act; complainant has concealed the true and material facts and has not come with clean hands. It is further pleaded that opposite party No. 1 is only sales point of the mobiles of various companies including Karbon Company. The guarantee or warranty if any given, the same is given by the manufacturer and the service is to be provided by the service centre of the company. There is no manufacturing defect in the mobile set. The complainant has been negligent in handling and maintenance of the mobile set. It is admitted that opposite party No. 1 sold the mobile to complainant and the manufacturer has given one year guarantee on the said mobile but on the accessories the guarantee is for six months. Opposite party No. 1 has sold the sealed mobile at the time of its sale and there was no defect in the same. The complainant used the mobile in rash and negligent manner due to which the alleged defect has occurred. The complainant never approached opposite party No.1. However, there is no deficiency in service on the part of opposite party No. 1. Other paras of the complaint have been denied and opposite party No. 1 prayed for dismissal of complaint.

In separate written version, opposite parties No. 2 & 3 have filed a joint written version. Several legal objections have been taken as have been taken by opposite party No.1. Opposite parties No. 2 & 3 never refused to repair the mobile hand set rather as per terms and conditions of warranty, the mobile is already lying repaired, but the complainant has not come to receive the repaired mobile set. Moreover, the said set was also replaced by the company with new one but the complainant did not accept the same. There is no deficiency in service on the part of replying opposite parties. It is admitted that there is one year guarantee for mobile phone device and six months for battery, charger and accessories. As per the conditions of guarantee/warranty, only required repair is to be done and defect is to be removed from the mobile phone. The products of the opposite parties are most durable and best in quality. According to the warranty claim, the opposite parties are to remove the defect in the mobile hand set. The complainant approached opposite party No. 2 with the problem that while in use some times the display goes white and he handed over his mobile to opposite party No. 3 (it should be opposite party No. 2) vide job card dated 22-5-2014 for removal of defect and the same was repaired and returned to the complainant. The son of complainant is not taking care while using the mobile and operating the same in carelessness manner due to which, defect has occurred. It is admitted that mobile was again handed over to opposite party No. 2 with the same problem and the said mobile was kept for repair and same has been repaired. The complainant was informed regarding the same but he did not come to collect the mobile and filed the present complaint. Moreover, the said set was also replaced by the company with a new one but the complainant did not accept the same. According to the terms of the guarantee, the mobile hand set was only to be repaired and the same is lying repaired. The complainant is not entitled for any damages or compensation. There is no deficiency in service on the part of opposite parties No. 2 & 3. Other paras of the complaint have been denied and opposite parties No. 2 & 3 have also prayed for dismissal of complaint.

In order to prove the case, complainant tendered into evidence Ex. C-1 short affidavit of Makhan Lal; Ex. C-2 bill dated 6-4-2014 vide which mobile hand set of Rs. 3200/- was purchased; Ex. C-3 Job sheet dated 22-5-2014; Ex. C-4 Job Sheet dated 29-5-2014; Ex. C-5 Job Sheet dated 9-6-2014 and Ex. C-6 affidavit of Makhan Lal.

In order to rebut this evidence, opposite party No. 1 tendered Ex. OP-1/1 affidavit of Naresh Kumar whereas opposite party No. 3 tendered Ex. OP-3/1 affidavit of Vicky Bathla, Authorized Person of opposite party No. 3.

We have heard learned counsel for the parties and have gone through the file very carefully.

It is admitted that complainant purchased one mobile hand set from opposite party No. 1 vide bill dated 6-4-2014. Opposite party No. 3 is the manufacturer of this mobile hand set whereas opposite party No. 2 is the service provider. This mobile developed some problem and first job card was issued on 22-5-2014 and problem mentioned is ' Blank display'. The mobile was definitely within warranty of one year. The condition of the mobile was good. As per the case of the parties, the mobile was repaired. Rinku, son of complainant again approached service provider of the company and Job Card dated 29-5-2014 Ex. C-4 was issued. In this Job Card 'Dim Display' has been mentioned. The complaint was also lodged on the website of the company on the basis of voice of customer. As per evidence on file, the mobile hand set was still not properly repaired. The son of the complainant again approached opposite party No. 2 on 9-6-2014 and same problem was reported. As per case of the opposite parties, the new mobile hand set with new IMEI number was issued which has been depicted on the bill Ex. C-2. This replaced mobile hand set also did not find favour with the complainant. As per version of opposite parties No. 2 & 3, previous repaired mobile hand set is lying with opposite party No. 2 whereas a stand has been taken that new mobile hand set was also given to the complainant with new IMEI number. Decidedly the mobile hand set purchased vide bill dated 6-4-2014 was taken to service centre thrice i.e. 22-5-2014, 29-5-2014 and 9-6-2014 within a span of two months and opposite party No. 2 failed to repair/rectify the said mobile and in these circumstances, another mobile was given to the complainant. There is no evidence on file on behalf of the opposite parties that new sealed mobile hand set was offered to the complainant and it seems that a second hand mobile hand set was offered to the complainant which he refused to receive. It shows that the complainant is not satisfied with the product of opposite party No.3. The opposite parties are bound to give proper service to the complainant and opposite parties No. 1 & 3 are expected to sell a zero defect mobile phone to the complainant but the opposite parties No. 1 & 3 have failed to do so.

Resultantly, there is no deficiency in service and unfair trade practice established against opposite party No. 2 and complaint qua opposite party No. 2 stands dismissed. However, complaint qua opposite parties No. 1 & 3 is accepted. The opposite parties No. 1 & 3 are ordered to refund the price of mobile hand set i.e. Rs. 3200/- to the complainant within one month from the date of receipt of this order failing which the complainant will be entitled to the interest @9% p.a. from the date of order till final realization. The opposite parties No. 1 & 3 will also pay Rs. 500/- as cost to the complainant. Their liability will be joint and several.

Let certified copies of order be communicated to the parties free of cost and file be consigned to the record room.

Announced :

15-12-2014 (Surinder Mohan )

President

(Jarnail Singh ) (Sukhwinder Kaur)

Member Member