State Consumer Disputes Redressal Commission
K.Amjad Basha vs N.Naveen Kumar on 31 January, 2008
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR
DISTRICT
CONSUMER
DISPUTES REDRESSAL FORUM, ANANTAPUR
PRESENT:- Sri
M.Subbarayudu Naidu,
B.Com., B.L.,
President-Incharge
Smt.S.Lalitha,
M.A., M.L., Member,
Thursday,
the 31st day of January, 2008
C.C.No.121/2007
Between:
K.Amjad
Basha
S/o
Late
K.Dashtagiri Saheb
Advocate,
D.No.13-1-681,
Revenue
Colony,
Anantapur.
Complainant
Vs.
N.Naveen
Kumar
Proprietor,
N.S.M. Electronics,
D.No.13/78,
Giriyappa
Complex,
Opp: Vijaya Eye
Clinic,
Beside
Police Welfare Complex
Kamalnagar
Anantapur.
Opposite party
This
complaint coming
on before us for final hearing on
25-01-2008 and upon perusing the
complaint, written
version and other relevant material papers on record and on hearing,
Sri S.Abdul Rasool
& Sri P.Vijaya Bhaskar,
counsels for
the complainant and Sri N.Harikrishna, counsel for the opposite party
and having
stood over till this day for consideration, this Forum made the
following:
O
R D E R
Delivered
by Sri M.Subbarayudu
Naidu, Incharge President on behalf of the
Bench:-
1.This complaint is filed under section 12 of Consumer Protection Act, 1986 to pass an order directing the opposite party to return the Mobile handset by rectifying its defect, to pay a sum of Rs.20,000/- towards deficiency in service with interest @ 24% p.a. from the date of complaint till the date of realization and also to pay costs of the complaint to the complainant as the Honble Forum may deem fit and proper in the circumstances of the case and in the interests of justice.
2. The averments in the complaint are in brief as hereunder:-
(a) The complainant purchased a Mobile handset bearing IMEI No.357093006669638 Model No.N-70 Nokia Brand Battery No.062140036807 made in Finland. The said Mobile handset was purchased for the valuable sale of consideration of Rs.14,000/-
at A1-Khobar Kingdom of Saudi Arabia on 07-01-2007. The warrant was given by the said Company for the said Mobile handset for a period of five years from the date of its purchase and the warranty will cover free spare parts and free labour charges for the entire duration of the warranty period. The said company undertook to replace the Mobile handset, if necessary.
(b) The said Nokia Mobile handset was given trouble in display problem i.e. (displaying the half picture in the wallpaper). Because of that problem cropped up in the said Mobile Handset, in the circumstances the complainant approached the opposite party on 20-09-2007 to repair and to rectify the display problem and the complainant had also shown the warranty to the opposite party. The opposite party undertook to rectify the display problem of the said Mobile handset and also assured that he will rectify the display problem and there is no need to approach the Mobile handset Company though the warranty is in subsistence. The opposite party broke open the company seal of the Mobile handset in the presence of the complainant and noticed that the problem of the Mobile handset and it is only displaying the half picture in the wallpaper and promised that the opposite party will rectify and deliver the Mobile handset on the same day i.e. 20-09-2007 and also collected a sum of Rs.1000/- towards service charges and accordingly a receipt was also issued by the opposite party on 20-09-2007.
Thereafter, the complainant approached the opposite party on 20-09-2007 and requested him to deliver the said Mobile handset, which was given for repair. Then, the opposite party did not return the Mobile Handset and postponing it on some pretexts or the other. So, the complainant waited till 04-10-2007 and got issued a legal notice on 04-10-2007 to the opposite party. The opposite party issued reply to the complainant stating that there were some other defects noticed. The opposite party being the expert would have noticed the defects prior to opening the company seal. Due to opening of the company seal, the warrant of the company becomes void and the complainant lost his opportunity in replacing the Mobile handset due to the deficiency in service by the opposite party. So, the complainant lost his valuable opportunity in replacing the Mobile handset and he lost the valuable phone calls from the various persons and sustained irreparable loss and damages.
(d) Now, the complainant is claiming a sum of Rs.20,000/- towards damages for deficiency in service and also to return the Mobile handset in good condition by rectifying the defect as promised by the opposite party. The causes of action are alleged in this complaint and it is within the jurisdiction of this Honble Forum to decide it. There is deficiency in service on the part of the opposite party. The complainant is entitled all the reliefs as prayed for in the complaint and may be allowed with costs. Hence, the complaint.
3(a) The complaint was
resisted by the opposite party by filing his written version on 09-01-2008. In the objections in the written version filed on behalf of the opposite party while denying the material averments made in the complaint, it is interalia stated that the object of the complainant in filing this complaint is to get wrongful gain. The complaint can not be entertained as it is frivolous/vexatious one.
(b) The opposite party narrated his version by saying in para 4 of the counter-objections that admittedly the said Mobile handset was not working at the time of giving it to this opposite party for repair and he never promised the complainant that he would make it a brand new piece, but only undertook repair the same. Further, he submitted that the complainant being an advocate made his best efforts to drag innocent self-employed entrepreneur to this Consumer Forum on the payment of Rs.1,000/- which was agreed towards the advance amount and having taken the estimation of repairing charges as Rs.4,500/- making all the gimmicks to knock off Rs.20,000/- for fit for non-use piece, without opting for the repairs.
(c) The opposite party further submitted that in fact he had advised the complainant to go for a new one since the prices of Mobile goods were drastically falling and it is not advised to get them repaired expending so much of money on it again, unless some sentiments are attached to them. The complainant preferred to get it repaired at the first instance and later after giving estimation for Rs.4,500/- on 27-09-2007 for replacing integrated circuits (ICS) since the circuit of the Mobile I.C.No.661Z-RM84, which was found defective and even after replacing new LCD since the problem was still persisting the IC was checked up and found that it was also a reason for the half display of the screen (LCD), the complainant did not turn up again but instead sent a legal notice to the opposite party herein.
(d) The opposite party further submitted that as alleged in para 5 of the complaint that he had received a sum of Rs.1,000/- towards service charges is false and the same was only given to him towards advance to get the substitute for the defective LCD. The job-sheet given to the complainant by this opposite party and endorsements made thereon speaks clearly the same. There is a systematic approach of finding the defects in the electronic goods including the mobiles and it is not possible to discover the exact problem at one instance and it is only possible by a chance. The opposite party was ready to give back the advance amount and the mobile set of the complainant without pursuing , but the complainants target was only to claim wrongfully.
(e) The opposite party further submitted that since the opposite party has already intimated the complainant to take back the said mobile handset and advance of Rs.1,000/- and the complainant failed to take the same. The opposite party is ready to deposit the advance amount of Rs.1,000/- paid by the complainant and the said mobile handset, which was given to him for repair before the Honble Forum as and when directed. He also further submitted that if the complainant still persists to get the same piece got repaired, the opposite party is ready to do the job, if reasonable time to repair the mobile set, is provided to working condition. He also further sought for that Honble Forum may be pleased to order the complainant to pay him the remaining amount due towards the repairing charges or such other order or orders deem fit and proper under the circumstances of the case and also order the complainant to pay the exemplary costs in favour of the opposite party and dismiss the frivolous/vexatious complaint. There is no deficiency in service on the part of the opposite party towards complainant. There is no cause of action and the complainants claim is only for wrongful gain and the complaint is liable to be dismissed with exemplary costs.
4. In support of the averments made in the complaint, the complainant filed his affidavit on 24-10-2007 alongwith complaint. The complainant also filed 9 documents, which are marked as Ex.A1 to Ex.A9. Ex.A1 is the cash bill dt.07-01-2007 for Rs.14,000/- issued by A1-Khobar King Fahad Street Cross 11, Kingdom of Saudi Arabia. Ex.A2 is the warrant card dt.07-01-2007 issued by Axiom telecom service centre, A1-Khobar, Kingdom of Saudi Arabia .
Ex.A3 is the receipt bearing No.411 dt.20-09-2007 issued by the opposite party. Ex.A4 is the office copy of legal notice dt.04-10-2007 issued by the complainants counsel on behalf of the complainant to the opposite party by Registered Post with Acknowledgement due. Ex.A5 is the acknowledgement Card No.638 dt.04-10-2007 signed by the opposite party and served it on him on 05-10-2007. Ex.A6 is the reply letter dt.06-10-2007 issued by the opposite party to the complainants Advocate by Registered Post with acknowledgment due. Ex.A7 is another registered letter by Regd. Post Acknowledgement Due dt.09-10-2007 issued to the opposite party by the complainants advocate, reply to reply of the opposite party. Ex.A8 is an acknowledgement card bearing No.839 dt.09-10-2007, signed by the opposite party dt.11-10-2007. Ex.A9 is the telegram issued by the opposite party to the complainants advocate, Anantapur.
5. In support of his case as stated in the written version, the opposite party filed one document, which is marked as Ex.B1 is the scanned print copy of the mobile handset alongwith memo filed on 09-01-2008.
6. Both the parties have filed affidavits by way of evidence in support of their case and also produced the documents, which are marked as exhibits. Both the counsels have not filed their written arguments. We have heard oral arguments of both sides.
7. On the basis of the pleadings and documentary evidence, the points that arise for determination are:-
1. Whether there is any deficiency in service on the part of the opposite Party towards the complainant?
2.
Whether the complainant is entitled for the reliefs as prayed for? If so to what extent ?
3. To what relief?
8. POINT NO.1(a):- It is very important to note that he, who seeks equity from courts must come with clean hands, this is the principle on which any person can approach Court/Forum for claiming of relief or releifs as the case may be. A complaint can be filed under the Consumer Protection Act in respect of unsatisfactory services. The entire objective of the said Act is to protect a consumer against malpractices in business. In fact, the Act requires provider of service to be more objective and care-taking.
(b) The subject matter of the complaint is that mobile handset of the complainant handed over it to the opposite party herein, for making of repair and see that it should be in working condition, on consideration. It is an admitted fact that the opposite party received Rs.1,000/- (Rupees one thousand only) i.e. Ex.A3, as an advance from the complainant, to set right the display problem of the mobile handset in question. The whole problem arises due to misunderstanding of the terms and conditions specifically before undertaking the repair work by the opposite party as well as the complainant. The complainant did not furnish enough information as it required under the circumstances of the case to the opposite party.
We have perused the record carefully. Heard, the learned counsel at length. After verifying the contents of complaint, it is crystal clear that the complainant has very much knowledge about the warranty of his mobile handset. Ex.A2 is the warrant card dt.07-01-2007. It is with the complainant since long time. On perusal of it, discloses the terms and conditions, wherein it is clearly stated that warranty is void for the following:-
1. 2
3.
Service, repair or alteration by any personnel other than Axioms authorized service centre.
(d) Even according to the complainant, in para 5 of his complaint that the opposite party break open the company seal of mobile handset in the presence of the complainant. It means that with the active consent of the complainant only, the opposite party breaks open company seal in order to verify the defect in the mobile handset. Subsequently, the complainant averred in para 6 of his complaint that, due to opening of the company seal, the warranty of the company becomes void and thereby he lost his opportunity in replacing the mobile handset- it is due to deficiency in service by the opposite party. This is alleged by the complainant himself. One can not blow hot and cold in the same breath.
It shows that the complainant approach should be considered by referring other relevant material on record, how far he is while submitting the correct facts and inviting us for a decision?
(e) Sri S.Abdul Rasool, the learned
counsel appearing for the complainant vehemently argued before us stating that the opposite party did not hand over the mobile handset on 20-09-2007 itself as promised according to Ex.A3. He further argued that the opposite party did not return the mobile handset and postponing it on some pretext or the other. So, the complainant waited till 04-10-2007 and issued a legal notice i.e. Ex.A4 to the opposite party to pay Rs.20,000/- towards deficiency in service. The said learned counsel for the complainant further argued that there is no response from the opposite party even after Ex.A7 i.e. another legal notice issued to the opposite party. The learned counsel stressed much on the aspect of service rendered by the opposite party towards the complainant. He further argued that due to deficiency in service of the opposite party, the complainant lost the valuable phone calls from the various persons and sustained irreparable loss and damages. So, the complainant is entitled all the reliefs as prayed for in the complaint and may be allowed with costs.
(f) On the other hand, Sri N.Harikrishna, the learned counsel appearing for the opposite party also vehemently argued before us, submitting that admittedly the above said mobile handset is not working even at the time of giving it to the opposite party for repair and the opposite party never promised the complainant that he would make it a brand new piece, but only undertaking for repair. He further argued that the complainant being an advocate made his best efforts unnecessarily dragged the opposite party to this Consumer Forum on payment of Rs.1,000/- as an advance. The opposite party is a small self-employed entrepreneur. He agreed for the said payment of Rs.1,000/- paid to him towards an advance amount for repair of mobile handset of the complainant. Having taken the estimation details of repair and for costs of Rs.4,500/- likely to be incurred for repair of Mobile Handset by the complainant from the opposite party, now, without opting for repair of an article, attributing motives against the opposite party and claiming wrongful gain of Rs.20,000/- towards damages from the opposite party.
The said learned counsel asserted that how far, it is reasonable and justified on the part of the complainant. In that process, he argued that the opposite party immediately after receiving legal notice i.e. Ex.A4 and responded to the complainants counsel in the form of reply i.e. Ex.A6 denying the allegations and also requesting the complainant stating that he is ready to make it repair after replacing required items provided the payment of Rs.4,500/- by the complainant towards purchase of required parts or other-wise ready to deliver mobile handset in the same condition and refund the advance.
(g) The learned counsel for the opposite party further brought to our notice about Ex.A7 i.e. another legal notice served on the opposite party by way of registered post stating that having received a reply i.e. Ex.A6 from opposite party and not satisfied with it and again alleging that the mobile handset, which is in the custody of the opposite party, created number of problems as he desires it. By opening the mobile handset, the problems noticed by the opposite party while in the process of repair, as a mechanic, suggested to the complainant by replacing the required items and also estimated work cost about Rs.4,500/- intimated and agreed by the complainant and thereafter with an ulterior motive , the complainant is claiming wrongful gain of Rs.20,000/- from the opposite party showing deficiency in service instead of showing interest of repairing aspect of his Mobile handset. The complainant is harassing the opposite party, without getting it repaired of mobile handset, adopting the methods, which is suitable for him. The opposite party tendered the said mobile handset and also an advance amount of Rs.1,000/-, but the complainant refused for the same. It is also clearly mentioned in Ex.A6 i.e. reply letter issued by the opposite party in response to the legal notice issued to him through the complainants advocate, on 06-10-2007 itself.
(h) It seems that the complainants intention is clear and harassing the opposite party without any fault of him and wants to take advantage of the situation and trying to get wrongful gain. The said learned counsel asserted that the question of receiving calls in the said mobile handset and inconvenience or loss, it does not arise, because mobile handset is not at all working since long time and it is not displaying anything. Without making repair and without suitable parts replaced to the mobile handset, how can the opposite party hand over it to the complainant in working condition. One can visualize the whole situation by observing the contents of the documents marked on behalf of the complainant. The learned counsel further submitted that he tendered mobile handset to the complainants counsel, in the court hall in the presence of the officers of the Consumer Forum on 09-01-2008, but the complainants counsel refused to take it. It all speaks for itself. He asserted that the entire fault lies with the complainant. The complainant is trying to get wrongful gain from the opposite party by twisting the facts of the case suitable to him. At no point of time, the complainant is interested to get his Mobile handset to be repaired by replacing suitable parts and make it in working condition of his Mobile handset. The learned counsel further argued that the complainants clear intention is, by all means, put the opposite party by showing deficiency in service and thereby claiming of said Rs.20,000/- as damages but nothing else. The complainant is harassing and causing mental agony to the opposite party by issuing Ex.A4 and Ex.A7 i.e. legal notices. The opposite party is unable to concentrate his mechanical work in the shop, due to mental worry caused to him by the complainants attitude. So, the opposite party is entitled to get damages for his suffering at the hands of the complainant and the complaint may be dismissed with exemplary costs, in the interests of justice.
(i) On perusal of documentary evidence on record and hearing of the counsel of both sides, it is clearly apparent that the complainant has not approached this Forum in a fair manner. The burden of proving the deficiency in service is upon the person, who alleges it. In view of the definition of service and deficiency in se sections 2(1)(o) and 2(1) (g) of the Consumer Protection Act, 1986, deficiency in service can not be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be performed by a person in pursuance of a contract or other-wise in relation to any service. The Supreme Court in its decision Ranveet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) 1 SCC 66, wherein it had the opportunity to explain the nature of the test for ascertaining deficiency in service. It appears that, in this case on hand the complainant never intended to have any service (without providing necessary parts for making a repair to his mobile handset) from the opposite party. When no service is hired, there is no question of deficiency in it. It can be said that the word deficiency can be used only in the case of service . The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. From the evidence on record, we have reason to think that the complaint is false and frivolous. We do not find any merit in the contention of the complainant.
(j) In view of the discussion in paras (a) to (g) above, the complainant has not proved his case and established the deficiency in service on the part of the opposite party herein. There are no merits in the complaint. We are not convinced with the arguments of the complainant. On the other-hand, the learned counsel for the opposite party established his case showing the opposite partys response at every moment to return mobile handset and advance amount of Rs.1,000/- to the complainant. The complainant is interested in litigation and claiming wrongful gain, without any basis whatsoever. Hence, it can be said that there is no deficiency in service on the part of the opposite party. Moreover, the complainant has sufficiently caused harassment and mental agony to the opposite party by issuing legal notices through his counsel and put him in awkward situation. Because of the attitude of the complainant, the opposite party suffered a lot, it is clearly evident from the record. For this, the complainant has to reimburse for the loss for suffering of the opposite party. In the circumstances and facts of the case on hand, the complainant has to pay Rs.2,000/- (Rupees two thousand only) as damages to the opposite party. The opposite party has to handover the above said Mobile handset of the complainant, which is in present condition alongwith an advance amount of Rs.1000/- to the complainant directly and obtain receipt from him. Normally, we would have saddled the complainant with compensation and costs, but in this case we think that he has been ill-advised and misled in filing the complaint in the hope of getting some compensation from the opposite party. This point is answered accordingly.
9. POINT NO.2 :-
In view of the discussion above in para 1 in detail about the case on hand, the complainant is not entitled any reliefs prayed in the complaint. Moreover, in the interests of justice, harassment and mental agony is equally applicable not only to the complainant but also the opposite party. Mental agony can not be measured in terms of money. There are no merits in the complaint to assess it. It is totally meritless. The opposite party is entitled to get damages of Rs.2,000/- towards his mental agony from the complainant. He is also entitled to get the costs of the complaint for Rs.500/- (Rupees five hundred only). The complaint is frivolous and vexatious one. Hence, we find that the said amount of Rs.2,500/- (Rupees two thousand and five hundred only) in total, towards damages and costs of the complaint payable to the opposite party by the complainant. It will meet the ends of justice. This point is accordingly answered.
10. POINT NO.3:- In the result, the complaint is dismissed with costs. It is hereby directed the complainant to pay Rs.2,000/- (Rupees two thousand only) towards damages for mental agony suffered by the opposite party and to pay Rs.500/- (Rupees five hundred only) towards costs of this complaint filed by the complainant against the opposite party, to the opposite party within one month from the date of receipt of copy of order. It is also further directed that the complainant is at liberty to receive his mobile handset and also an advance amount of Rs.1000/- (Rupees one thousand only), which he paid earlier from the opposite party, subject to payment of total amount of Rs.2,500/- (Rupees two thousand five hundred only) to the opposite party within the above said period of one month from the date of receipt of copy of the order. This point is accordingly answered.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum on 31st day of January, 2008.
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MEMBER PRESIDENT- INCHARGE DISTRICT CONSUMER FORUM, DISTRICT CONSUMERS FORUM, ANANTAPUR ANANTAPUR APPENDIX OF EVIDENCE WITNESSESS EXAMINED FOR COMPLAINANT : NIL OPPOSITE PARTY: NIL EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT Ex.A1
-
Cash bill dt.07-01-2007 for Rs.14,000/- issued by A1-Khobar King Fahad Street Cross 11, Kingdom of Saudi Arabia.
Ex.A2
- Warrant card dt.07-01-2007 issued by Axiom telecom service centre, A1-Khobar, Kingdom of Saudi Arabia .
Ex.A3
- Receipt bearing No.411 dt.20-09-2007 issued by the opposite party.
Ex.A4
- Office copy of legal notice dt.04-10-2007 issued by the complainants counsel on behalf of the complainant to the opposite party by Registered Post with Acknowledgement due.
Ex.A5
- Acknowledgement Card No.638 dt.04-10-2007 signed by the opposite party and served it on him on 05-10-2007.
Ex.A6
- Reply letter dt.06-10-2007 issued by the opposite party to the complainants Advocate by Registered Post with acknowledgment due.
Ex.A7
- Another registered letter by Regd. Post Acknowledgement Due dt.09-10-2007 issued to the opposite party by the complainants advocate, reply to reply of the opposite party.
Ex.A8
- Acknowledgement card bearing No.839 dt.09-10-2007, signed by the opposite party dt.11-10-2007.
Ex.A9 -
Telegram issued by the opposite party to the complainants advocate, Anantapur.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY Ex.B1 -
Scanned print copy of the mobile handset alongwith memo filed on 09-01-2008.
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MEMBER PRESIDENT - INCHARGE DISTRICT CONSUMER FORUM, DISTRICT CONSUMERS FORUM, ANANTAPUR ANANTAPUR Typed by JPNN