Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant U/s 12 of the Consumer Protection Act, 1986. Complainants case in brief is that on 28th July, 2010 she had purchased mobile phone from O.P.No.2 for amount of `22,200/-. After purchase, handset started giving various problems within few days. She was unable to charge the battery. Therefore, on 3rd February, 2011, she approached the O.P.No.3 and reported the problems. The O.P.No.3 informed that the motherboard needs replacement and phone was required to be sent to Chennai. He assured that phone will be returned within 10-12 days after repairs. Therefore, phone was handed over to the O.P.No.3. On 14th February, 2011, the complainant contacted O.P.No.3 however, there was no response. Therefore, again on 17th February, 2011, she contacted with O.P.No.3 but there was no favourable reply. On 21st February, 2011, the complainant was informed that it may take months together to receive the phone. Therefore, the complainant issued notice dated 21st February, 2011 to the Opponents. It was duly received by O.P.No.2. The same was forwarded to O.P.No.1. In the 2nd week of March-2011, the complainant made enquiry with O.P.No.2. He gave mobile number of O.P.No.1’s Customer Executive Mr.Parekh. The complainant contacted with Mr.Parekh. He gave assurance only. On 25th March, 2011, Mr.Parekh informed the complainant that he can refund the amount and requested to handover the purchase invoice. Purchase invoice was given to the O.P.No.3. Mr.Parekh gave assurance of reimbursement. As there was no response, the complainant issued notice on 7th April, 2011 and called upon the Opponents to refund the amount of `22,200/-. She has also claimed compensation of `7,50,000/- towards harassment. As there was no response, the complainant has filed this complaint for refund of amount and compensation of `7,72,200/- and cost of this proceedings `25,000/-.
2) The O.P.No.1 appeared and filed written statement. It is submitted that, the present complainant earlier had purchased one Sony Ericsson handset model No.G700. After using it for 10-11 months, she raised several issues and as a gesture of goodwill, the O.P.No.1 refunded the cost of handset in the year-2009. Again, on 28th July, 2010, she purchased handset bearing Model No.”U5i” after complete satisfaction. She used it till February, 2011 i.e. for seven months. It shows that the handset has no manufacturing defect. On 3rd February, 2011, the complainant made complaint of not charging. It was attended by the Opponents’ Service Engineer. Motherboard of the handset was required to be changed. Therefore, the handset was deposited by the complainant with the Opponent. The handset was duly repaired by service centre within three weeks and the complainant was informed but the complainant did not collect the same, despite repeated reminders and handset is lying with O.P.No.3 in perfect working condition.
3) The complainant has not produced technical/expert report showing the manufacturing defect in the handset. It was mandatory to produce such report. Therefore, it can not be accepted that handset suffers manufacturing defect. All the other allegations made by the complainant are denied. It is submitted that handset is lying with O.P.No.3 in perfect working condition and the Opponent is ready to produce the same to demonstrate its worthiness and to show that there is no deficiency in service. The complaint is malafied therefore it needs to be dismissed with cost.
4) The O.P.No.2 and 3 remained absent though duly served. Therefore, they are proceeded ex-parte.
5) After hearing all the parties and going through the record, following points arise for our consideration
POINTS
Sr. No. | Points | Findings |
1) | Whether there is manufacturing defect in the handset ? | No |
2) | Whether the complainant is entitled for refund of amount of `22,200/- ? | No |
3) | Whether the complainant is entitled for compensation of `7,50,000/- towards harassment and mental agony ? | `5,000/- |
4) | What Order | As per final order |
REASONS
6) As to Point No.1 :- It is not disputed that earlier the complainant had purchased one handset from the Opponent and after using it for 10-11 months, she claimed refund of the amount and the same was refunded in the year-2009. It is also not disputed that the complainant had purchased the present handset from O.P.No.2 for `22,200/- on 28th July, 2010. There is no dispute that the complainant used it and for the first time on 3rd February, 2011, i.e. after seven months approached the O.P.No.3 complaining problems in the handset. It not disputed that handset was handed over to O.P.No.3 and the O.P.No.3 issued acknowledgement/ELS Report at Exh.B. As per the ELS Report, charging connector was broken and the phone stopped functioning. In this report itself, it is written that prior to this, phone was fully functioning. This report is acknowledged by the complainant. This report is produced on record by the complainant herself. It shows that problem was started since 3rd February, 2011 i.e. seven months after the purchase. If the contention of the complainant about manufacturing defect is accepted then the phone would not have worked for seven months. The complainant has not produced any expert/technical report showing manufacturing defect in the handset. If the handset was not working properly earlier then it was necessary for the complainant to report immediately to the Opponents. On the other hand, the complainant herself has admitted in this report at Exh.B that earlier handset was fully functioning. Thus, there is no base for the allegations made by the complainant about the manufacturing defect.
7) The learned advocate for the O.P.No.1 has placed reliance on the judgment of Hon’ble National Commission in the case of Merck Ltd.(Formerly Known as E Merck (I) Limited & Others –Versus- Hubli Diagnostics Medicate and Research Centre Private Limited. In view of this judgment, onus lies on the complainant to prove manufacturing defect. In the instant case before us, the complainant has not produced any technical/expert evidence to prove manufacturing defect in the handset.
8) In the affidavit of evidence, the complainant has stated that the handset was with Opponent therefore expert opinion could not be produced. In the written statement itself, the O.P.No.1 has offered the handset to be produced before the Forum. Therefore, it was necessary for the complainant to call the handset before the Forum for obtaining expert/technical opinion. The complainant failed to do so. Simply making allegations about the manufacturing defect is not sufficient to claim the refund amount. Moreover, the complainant herself has admitted in ELS Report Exh.B that the handset was properly functioning. The complainant has no where stated about the warranty period of handset. If defect is found within warranty period, she may claim for replacement of handset/part. As admitted by the O.P.No.1 in written statement, it was necessary to change motherboard therefore handset was handed over to O.P.No.3. According to O.P.No.1, motherboard is changed and the handset is properly working. It was necessary for the complainant to verify whether the motherboard is replaced and whether handset is properly functioning. Making allegations after seven months about manufacturing defect is not proper.
9)As to Point No.2 & 3 :-According to the O.P.No.1 handset was repaired and complainant was requested to collect it but there is no evidence. The notices sent by the complainant were also not replied. It shows that Opponents have not taken proper care to attend the complaint promptly. In the notice dated 21st February, 2011 and 7th April, 2011, the complainant has claimed refund of amount and not replacement of the handset. As discussed above, there was no manufacturing defect in the handset therefore the complainant is not entitled for refund of amount.
10) As admitted by the O.P.No.1, it was necessary to replace the motherboard and accordingly same is replaced and the handset is properly working. As there is no evidence about manufacturing defect the complainant is not entitled for refund of amount. As there is problem in the motherboard, the Opponents are responsible to replace it. The complainant is entitled for handset in proper working condition. It was necessary for the Opponents to inform the complainant about the repairs of handset. The Opponent failed to do so. Therefore, they are liable to handover the handset to the complainant in proper working condition. As they failed to attend the complaint of complainant promptly they are liable to pay compensation to the complainant. The compensation claimed by the complainant for `7,50,000/- is exaggerative. The complainant was also adamant to claim refund of amount instead of replacing the handset or particular part. The compensation claimed by the complainant should be reasonable. Considering the adamant conduct of the complainant and failure of the Opponents to attend the complaint promptly we think compensation of `5,000/- will suffice the purpose.
11) Thus, the complainant is entitled for her impugned handset in good working condition. She is also entitled for compensation of `5,000/- towards harassment and mental agony. Therefore, we proceed to pass the following order.
O R D E R
1) The complaint is partly allowed.
2) The Opponents are directed to handover the impugned handset to the complainant in good working condition.
3) The complainant shall collect her handset within one month from O.P.No.3.
4) The Opponents shall pay compensation of `5,000/- (Rs.Five Thousand Only) to the complainant jointly and severally within a period of one month.
5) The Opponents shall pay cost of `1,000/- (Rs.One Thousand Only) together towards the cost of this proceeding.
6) Copies of this order be sent to the parties free of charge.
