Miss Rina Mukherjee – Sr. Member.
The complainant filed an application u/s 12 of consumer protection act 1986, amended up to date.
The case in brief is that the complainant purchased a Gionee G5 white mobile hand set being No. 865747020481255 from O.P No.1 vide in voice No. GNM 500 dt. 27.12.2014. with Rs.13500. On 23.05.2015 the complainant has noticed some problems in the display of his mobile phone and as it was within the warranty period the complainant went to the authorized service Centre i.e. O.P No.2 for repairing the same. The O.P No.2 kept the mobile set for repairing and prepared a Job sheet vide No. GC15500083514 dated 23.05.2015 and thereafter asked the complainant to deposit Rs. 225/- for repairing the mobile set. But the complainant did not pay the same as the mobile was within warranty period and the O.P No.2 denied to repair the mobile set without any charge and returned the same to the complainant on the same date. The complainant then lodged complain before O.P No.3 and 4 through e.mail requesting them several times to replace/repair the defective mobile but they did not pay any heed. Finding no other alternative the complainant filed this case praying for direction upon the O.P Company to replace / repair the mobile set without any cost, total compensation of Rs. 90,000/- and litigation cost of Rs. 7000/-.
O.P No.1 contested the case by filing written version and denied all allegations made in the complaint. The O.P No.1 stated that he is neither a dealer nor a manufacturer of the mobile/cell phone, he is a retailer of the mobile set only and there is no liability on the part of the O.P No.1 regarding the defect. He again stated that the O.P No.1 is unnecessary party and prayed for dismissal of the case against him.
O.P No.2 filed written version only and thereafter did not turn up to contest with the case. In that written version the O.P No.2 stated that on checking the mobile set they found the LCD of the mobile was damaged which is not cover under the warranty as per Gionee Warranty conditions and as per rule of service centre the O.P No.2 demanded Rs. 225/- for servicing charge and as the complainant refused to pay the repairing cost for physical damage of the mobile the same was returned to him. The O.P No.2 also stated that as the O.P No.2 is the servicing centre he has no liability to replace the mobile set and prayed for dismissal of the case against him with cost.
Inspite of receipt the notice O.P No.3 did not turn up to contest with the case. So the case was heard ex parte against O.P No.3.
O.P No.4 has been expunged from the case on request of the complainant as he is an unnecessary party.
The complainant filed evidence in chief on affidavit and examined and cross examined himself. The O.P No.1 and O.P No.2 did not adduce any evidence. Ld. Lawyer for O.P No.1 prayed to accept his written version as written argument. The complainant filed written argument and made oral argument also.
We have heard Ld. Lawyers and perused the documents carefully. Following points are necessary to discuss for the determination of the case.
- Whether the complainant is a consumer under Sec. 2(1)(d)(i) of the C.P. Act.?
- Whether this Forum has jurisdiction to try this case?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to get any other relief or reliefs as prayed for?
DECISION WITH REASONS
Point No.1:: Evidently the complainant has purchased one Gionee G5 White mobile hand set after paying the consideration of Rs. 13500/- to O.P No.1 on 25.12.2014 vide invoice No. GNM 500.
So, the complainant is a consumer u/s 2(1)(d)(i) of the C.P. Act.
Point No.2:: Total valuation of the case is Rs. 97,000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.
The shop/ office of the O.P No.1 is at Suri, Birbhum within the territorial jurisdiction of the Forum.
So, this Forum has both pecuniary and territorial jurisdiction to try this case.
Point No. 3&4:: Both points are taken up together for convenience of discussion as they are related to each other.
During the trial, the complainant stated that he has purchased the mobile set on 27.12.2014 from O.P No.1 with warranty of one year. But he found some problems in that handset on 23.05.2015 i.e. under warranty period and going to O.P No.2 the authorized service centre of Gionee Mobile for repairing. He also stated that the O.P No.2 firstly kept the mobile set in his custody for repairing and prepare a Job sheet No. GC15500083514 dated 23.05.2015 and thereafter asked the complainant to deposit of Rs. 225/- before them for repairing the mobile set. But since the mobile was under warranty period the complainant refused to deposit the money and for that, the O.P No.2 denied to repair the mobile set and returned the same without repairing after closing the job sheet with remark (LCD broken, so R.W.R) on the same day. The complainant also lodged complain before O.P No.3 through e.mail and they also receipt the same but did not pay any heed. The complainant filed original tax invoice of purchasing the mobile set, original job sheet prepared and delivered by O.P No.2, copy of letter and e.mails sent by the complainant to the O.P No.3.
It is clear that the complainant has purchased the mobile on 27.12.2014 from O.P No.1 and the mobile was under warranty at the time of dispute arose.
At the time of argument the O.P No.1 stated that he is not manufacturer or dealer of the said mobile phone, he is a retailer only and as such he has no liability regarding the defect of that mobile. He also stated that he is an unnecessary party in this case. The O.P No1 again stated the complainant has not submitted any expert opinion to prove the defect in the mobile.
We have gone through the record thoroughly. At the time of cross examination of the complainant done by O.P No.1, the complainant admitted that he has received the mobile set in packed and good condition from O.P No.1 and the seal of the packet was opened in front of him. The complainant again stated that O.P No.1 has no other liability regarding the problem of the mobile set. It is clear from the document that complainant has purchased the mobile set on 27.12.2014 and he has noticed the problem in that mobile on 23.05.2015 i.e. approximately after five months from purchasing. So, it can be concluded that the O.P No.1 sold the mobile set in good condition and he has no liability regarding the defect arose thereafter.
The O.P No.2 filed written version and thereafter did not appear to contest. In that written version the O.P No2 admitted that the complainant had deposited his mobile set for repairing under warranty period and they have prepared a job sheet dated 23.05.2015. The O.P No.2 also stated that they have found the LCD of the mobile was damaged/broken which is not covered by warranty condition and as per rule of servicing centre they have demanded Rs. 225/- for service charge and since the complainant has refused to pay the amount, the O.P No.2 returned the mobile set to the complainant.
We have verified the documents. The O.P No.2 has not mentioned anywhere on the job sheet the amount of cost they have demanded for repairing that mobile set even the warranty card also not shown that any repairing cost is required under the warranty condition. The O.P No.2 stated that as per rule of service centre they have demanded Rs. 225/-. But they have not produced or submitted any such rule or documents before this Forum. Moreover as per O.P No.2 the mobile set was physically damaged which was caused due to fall from height or mishandling. The complainant has produced the mobile set before this Forum at the time of argument. On careful verification apparently we have not found any physical damage in that mobile set. More so, since the O.P No.2 alleged that the mobile set was damaged due to fall from height, so the onus upon him to prove such fact. We have already stated that after filing of written version the O.P No. 2 has not turn up. So, the pleading of the O.P No.2 is not acceptable. Since the mobile set was under warranty condition at that time, the O.P No.2 is duty bound to repair the defect found in the mobile set without any service charge. But they did not do the same. So, there is deficiency in service on the part of the O.P No.2.
The document shows that O.P No.3 received the complaint sent by the complainant through e.mails and acknowledged with I.D: 1070206 but they did not take any step towards that complaint which is nothing but negligence and deficiency in service.
So, it is clear from the above discussion that there is deficiency in service on the part of the O.P No.2 and 3. Hence the case stands. Point No. 3 and 4 are, thus, disposed of in favour of the complainant in part.
Proper fees have been paid.
Hence,
O R D E R E D
that C.F case No. 131/2015 be and the same is allowed in part on contest against the O.P No.2 and ex parte against O.P No.3 and dismissed against O.P No.1.
The complainant is directed to deposit the mobile set before O.P No.2 within seven days and the O.P No.2 and 3 are jointly or severally directed to repair the mobile set of the complainant and deliver the same to the complainant in well and good condition within one month from the date of this order. The O.P No.2 and 3 are also directed to pay Rs. 2000/- as litigation cost to the complainant within above mentioned period failing which the complainant shall be at liberty to put this order for execution as per law and procedure.
Copy of this order be supplied to the parties each free of cost.
