Minakshi Chakroborty, Presiding Member.
Brief facts of the case: This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant praying for a direction upon the opposite party to pay a sum of Rs. 12,999/- for price of the mobile set, Rs. 5000/- for loss of service, Rs. 3000/- for mental pain and agony and litigation cost amounting to Rs. 5000/- total claimed amount Rs. 25,999/- from the opposite party. The complainant being a student got a mobile set from her friend as gift and the mobile was purchased from Flipkart.com on 2.5.2017 for a sum of Rs 12,999/-m being model no, Lenovo VIBE K5 note model, manufactured by the opposite party no. 1. The bill addressed in the name of her friend, namely, Snehashis Boral, Palpara, Chandannagore, Hooghly for purpose of delivery of service. Since purchase said mobile phone has been creating problem and the complainant visited the opposite party no. 2 who solved the problem by his expert and thereafter in month of October or November, 2017 the mobile set again suffered charging problem for which the complainant again visited the opposite party no. 2. The opposite party no. 2 replied that it was a charging slot damage and they will solve the problem if the set is given for a long time and kept the set for one and half months over. The complainant rushed to the opposite party no. 2 who on his turn replied that it could be solved after change of parts and make charged Rs. 1500/- though the set was within the period of warranty. So, the complainant got back the set in dead condition. The petitioner visited the office of the opposite party no. 3 and told them the entire matter and the opposite party no. 3 advised the petitioner they can only take responsibility to repair the same after receiving the certificate of the mobile from the opposite party no. 2. As they have apprehended that the opposite party no. 2 might be changed the Mother Board of the set with ulterior motive for which IMIE code of the said changed and the set was showing beyond the warranty period. As per advice of the opposite party no. 3 the petitioner met the opposite party no. 2 and requested him of the certificate but after several attempt he issued the certificate as Lenovo service order on 3.11.2017 where it is crystal clear that the opposite party no. 2 motivatedly changed the Mother Board IMIE code of the mobile set of the petitioner for which she mentally depressed and suffered immense loss. That on 2.12.2017 the petitioner again visited the office of the opposite party no. 3 for repairing the same. But they refused to repair it as it is out of warranty and some parts are missing and it will cost a huge amount for its repairing. The opposite party no. 2 intentionally deprived the petitioner from her legitimate claim and she suffered mental pain and agony. Getting no alternative she filed the instant suit praying for a direction stated above.
The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and prayed to dismiss the instant case with cost.
The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This opposite party submits that on 2.12.2017 and 23.1.2018 the opposite party No. 3 received one mobile phone from the complainant which was dead and on 2.12.2017 the opposite party No. 3 prepared a job sheet and mentioned the problem description “Dead phone charge not increase” and further mention that internal functional condition “els not operating” and also mentioned there “Liquid Damage” and the complainant signed the said job sheet after going through the same. On 23.1.2018 the complainant further met the opposite party No. 3 with the said set and the opposite party No. 3 further prepared a job sheet and took snap of the mobile reveling/ showing some tampering therein and mentioned the problem description “not charging….dead” and further mention that internal functional condition “els not operating” and also mentioned there “Tampered…….” which the opposite party No. 3 is not liable to repair as per terms and conditions and the complainant signed the said job sheet after going through the same. So, the complainant is not entitled to get any relief as sought for in the instant compliant and the instant compliant is liable to be rejected with exemplary cost for the ends of justice.
Evidence:
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
On 21.6.2022 complainant filed a petition for treating the complaint petition and evidence on affidavit as BNA and the prayer was accepted.
Argument as advanced by the Ld. Advocate of the complainant heard at length.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get any relief as prayed for?
DECISION WITH REASONS
Issue No:- 1.
It transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (i) of the Consumer Protection Act, 1986 on the ground of her having one Lenovo VIBE K5 note model mobile set on 02/05/2017 worth Rs. 12999/ being gifted by her friend, Snehashis Boral, Pal Para, Chandannagor Hooghly 712136. Annexure 1 indicates the billing address of Mr. Boral, the friend of the complainant.
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Both the complainant and the opposite parties are residents/ having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per his petition of complaint it appears that those do not exceed Rs. 20,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain the present case.
Issue nos. 3 and 4
Issue nos.3 and 4 are taken up simultaneously for disposal for the sake of convenience. On scrutiny of the evidence of Ushasi Mitra, the complainant dated 30/01/2019 it transpires that the aforesaid mobile phone started creating problem for which the same was given to Lenovo authorized service centre (O.P 2) and according to her version the O.P no. 2 could not solve the problem of charging slot damage; on the contrary O.P no. 2 claimed charge of Rs. 1500/ to resolve the problem. The petitioner became astonished to hear the same as the set was already within the period of warranty. On her visit to the office of O.P no. 3 she was given assurance to repair the set after receiving the certificate from O.P no. 2 on some allegations of changing the IMEI. The petitioner has also stated that she visited the O.P no. 2 on 03/11/2017 and has alleged that the O.P no. 2 changed the mother board of the mobile set.
On perusal of the written versions of O.P no. 2 & 3 it appear that both these O.Ps have categorically denied the versions of the complainant.
The complainant has filed annexure I dated 02/05/2017, the purchase memo of Snehashis Boral. She has also filed annexure II which has been issued by O.P no. 2 wherein it appears that the petitioner was given “the smart phone in full working condition including all accessories. No further action pending from the service centre.” This annexure II is dated 03/11/2017. It further appears from annexure no. III, issued by the O.P no. 3 that the present petitioner “received the smart phone in full working condition including all accessories. No further action pending from the Service Centre.” It is apparent that annexure III has been signed by the petitioner herself.
On consideration of the facts and circumstances stated hereinabove this Commission is of considered opinion that the spirit of the law is not to run after the agency more than twice to different O.P’s to get her mobile in repaired condition. A man is not supposed to run anywhere and everywhere in a case like the present one in as much as the mobile is likely to work smoothly on and from the date of purchase. A purchaser is not likely to run from pillar to post for correction of the interior errors of the mobile.
In view of above, this commission is of opinion that the petitioner has been able to prove her case and as such the case succeeds.
Hence,
ordered
that the complaint case no. 31 of 2018 be and the same is allowed ex parte against all the O.Ps.
The petitioner do get return the price of mobile amounting to Rs. 12999/ ;
For loss of service Rs. 2000/ and Rs. 2000/ towards litigation cost.
The O.P nos. 2& 3 are jointly and severally do pay the aforesaid quantum of money within 45 days from the date of order in default the complainant is at liberty to take appropriate legal action against O.P nos. 2& 3.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
