Ld. Advocate(s)
For Complainant .. Maqbul Rahaman
For OP/OPs .. None
Date of Filing : 01.11.2018
Date of Disposal : 27.12.2019
: JUDGMENT & ORDER dtd. 27.12.2019 :
The case of the complainant, in brief, is that the complainant purchased one Motorola E4 Mobile (MOTO E4) from the OP No. 1 on 21.09.2017 on payment of Rs. 8,599/- bearing Invoice No. SDM - 0001632 dtd. 21.09.17. After purchase of the mobile, some problem has been started/detected in the said mobile and the complainant immediately informed the said matter to the OP No. 1 within the warranty period of one year. The OP No. 1 advised him to go to the Authorised Service Centre of the mobile company but the OP No. 2 i.e., Motorola Service Centre has failed to provide proper service to the complainant and lastly both the OPs advised him to repair the same by payment of cash though the said mobile was under the warranty period. Thereafter, the complainant made a complaint on 16.08.18 in the Office of AD, CA& FBP for getting proper relief and the said office tried to solve their problem through mediation but the OP No. 2 did not appear in that office. Finding no other alternative, the complainant has filed this case and prayed before the Forum to pass an order against the OP No. 1 either to replace the defective mobile with a new one of similar description which shall be free from any defect, or to return the price of the defective mobile i.e. Rs. 8,599/- to the complainant or to pass an order against OP No. 2 to make suitable repair of the said defective mobile which shall be free from all defect, Rs.5,000/- as compensation, cost of the case and other relief or reliefs.
The complainant has filed some documents in support of his case which are in the record are as below:-
1. Tax Invoice of mobile set.
2. G.D.E. to I/C, Kotwali P.S., Krishnagar dtd. 15.11.18 and
3. Copy of job sheets
On the other hand OP No. 1 and OP No. 2 have contested this case separately by filing separate written versions.
The specific contention of the OP No. 1, Sree Durga India Mobile is that the complainant purchased the mobile set from his shop but after use of 11 months, the mobile was defective for mishandling of the complainant and as the matter is absolutely mobile service related issue so he may be released from the case.
The specific contention of the OP No. 2 i.e., Motorola Service Centre is that the complainant visited 1st time on 27.12.2017 with the handset and problem was mentioned in the job sheet like Auto Restart, Touch Problem, Hang Problem, Battery Backup Problem etc. On that day the handset problem was solved and the handset was delivered to the complainant. The complainant came 2nd time on 02.08.2018 with the problem of Touch Problem, Touch Auto Working, Battery Backup Issue. That time this OP found the handset is damaged on touch display, External Housing Panel Bent, Oval. As per Lenovo & Motorola Terms and Conditions, it’s a physical damage which is not covered under warrantee so he delivered the handset to the complainant without repair. Thereafter, the complainant again visited the service centre on 13.08.18 and this OP informed the customer that according to previous call history the said set was physically damaged so this OP delivered the set to the complainant without repair.
The OP No. 2 has filed some documents to defend his case which are below:-
- Three copies of ‘Service Order-Service Centre copy’
- Two copies of pictures
- A copy of Terms & Conditions
Points for discussion
- Whether the complainant is a consumer under the CP Act, 1986?
- Whether there was any deficiency in service from the side of the OPs?
- Whether there is any unfair trade practice on the part of the OPs?
- Whether the complainant is entitled to get any relief /reliefs as prayed for?
Decision with reasons
Point No. 1:
The OP No. 1 admitted the fact that the complainant purchased the mobile set from their shop by paying Rs. 8,599/-. Therefore, it can be presumed that there is a relationship of consumer and service provider between the complainant and the OPs. So, the complainant is a consumer within the purview of Consumer Protection Act, 1986.
This point goes in favour of the complainant.
Points No. 2 & 3:
Both the points are taken up together for the sake of brevity and convenience of discussion.
We have meticulously gone through the complaint petition, written version and all the documents filed by the parties.
The main contention of the complainant is that in spite of warrantee period OP No. 2 did not repair his mobile set. On the other hand, the OP No. 2 stated in his written version that as the mobile set was physically damaged it cannot be repaired by him.
Now, the question comes whether the mobile set is actually physically damaged?
In support of contention of the OP No. 2 regarding ‘physical damage’ of the mobile set by the complainant, the OP No 2 did not file any cogent document to substantiate his contention.
It is the first and foremost duty of the OP No. 2 to repair the mobile set within the warranty period rather OP No. 2 without repairing the damage mobile set returned the same to the complainant on the plea as “physical damage”. It is also duty of the OP No. 2 to provide proper service of the complainant as an authorized service centre but the OP No. 2 Service Centre has failed to do so. So it can be said without hesitation that there is a clear case of deficiency in service from the side of the OP No 2.
That there is a clear gross negligence on the part of both the OPs. The OP No. 1 cannot escape from his liability as he received the consideration amount of Rs. 8599/- from the complainant.
On the basis of above observation, we are of the view that entire activities of the OPs are willful inaction and latches on their part and both the OPs are solely responsible for unnecessary suffering and harassment of the complainant. Thus, it is clear case of deficiency in service and also unfair trade practice on the part of both the OPs.
Point No. 4:
In view of the aforesaid facts and circumstances, we are of the opinion that the complainant is entitled to get the reliefs as prayed for.
In the net result the case succeeds.
Hence, it is
O R D E R E D,
That the case be and the same is allowed on contest against the OPs.
That the OP No. 1 is hereby directed to replace the defective mobile with new one of similar description which shall be free from any defect, or to return the price of the defective mobile i.e. Rs. 8,599/- to the complainant or OP No. 2 is hereby directed to make suitable repair of the said defective mobile which shall be free from all defect within 30 days from the date of this order, failing which the complainant is at liberty to put execution as per provision of C.P. Act 1986.
The OPs are further directed to pay Rs.5,000/- as compensation for mental pain and agony and also Rs. 2,000/- as litigation cost to the complainant within 30 days from the date of this order.
Let a plain copy of this judgment/order be supplied to the parties forthwith free of cost.
