State Consumer Disputes Redressal Commission
M/S Bharti Airtel Limited vs Shri Vinod Tegta And Another on 14 December, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, SHIMLA.
First Appeal No.84/2012
Date
of Decision: 14.12.2012
M/s Bharti Airtel Limited,
S.D.A. Complex, Kasumpti, Shimla-171
009,
Through its Chief Executive Officer.
..
Appellant
Versus
1. Shri Vinod Tegta son of Shri Atma Ram Tegta,
R/o Village Kashaini, Post Office
Tikkar,
Tehsil Rohru, District Shimla, H.P.
2. Shri Mohinder son of Shri Gian Singh,
Authorized Dealer M/s Bharti Airtel Limited,
C/o Gian Singh Bija Ram, General
Merchants Shop,
Tikkar, Tehsil Rohru, District Shimla,
H.P.
Respondents
Coram
Honble Mr. Justice (Retd.) Surjit Singh, President
Honble Mr. Chander Shekhar Sharma, Member
Honble Mrs. Prem Chauhan, Member
Whether
approved for reporting?[1]
Yes.
For the Appellant: Ms. Parul Negi, Advocate vice
Mr.
Vivek Negi, Advocate
For the
Respondent No.1: Mr. Swaran Sharma, Advocate vice
Mr.
Peeyush Verma, Advocate
For the
Respondent No.2: Mr. Jagat Singh Shayam, Advocate
O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Appellant is aggrieved by order dated 17.10.2011, of learned District Consumer Disputes Redressal Forum, Shimla, whereby a complaint, under Section 12 of the Consumer Protection Act, 1986, filed by respondent No.1-Vinod Tegta against him (the appellant) and respondent No.2 Shri Mohinder, has been allowed and the appellant and respondent No.2 are ordered to make the allegedly defective phone set functional forthwith and also to pay `5,000/- as compensation and `2,000/- as litigation expenses.
2. Facts relevant for disposal of the appeal may be noticed. Respondent-Vinod Tegta filed a complaint, under Section 12 of the Consumer Protection Act, 1986, alleging that he had purchased an Airtel FWP phone connection of the appellant from respondent No.2, who was the agent of the appellant, for a sum of `3,300/-, in the month of April, 2007, with a warranty of three years.
3. It was alleged that phone set developed some defect in November, 2007 and it was taken to respondent No.2, who retained the same for about a month and thereafter returned it, after charging a sum of `700/-, on account of recharge and `250/- for the replacement of SIM card. Further, it was stated that within 4-5 days thereafter, the set again became non-functional and was taken to respondent No.2 in December, 2007, who directed that the present appellant, being manufacturer, be contacted. Also, it was stated that in December, 2007, respondent No.1 visited the business place of the appellant, but not only that his complaint was not attended to, the workers of the appellant also misbehaved with him.
4. It was also alleged that respondent No.2 then purchased a new cell phone by spending a sum of `20,000/-, in December, 2007. Appellant and respondent No.2 were alleged to have indulged in unfair trade practice and were also alleged to be guilty of deficiency in service. Prayer was made for directing the appellant and respondent No.2 to make the handset functional and also to pay damages and litigation expenses.
5. Respondent No.2 was proceeded against ex-parte.
6. Present appellant appeared and filed reply, in which it was denied that it was the manufacturer of the handset. Also, it was denied that the handset was defective, as alleged, in the complaint. Further, it was pleaded that as a goodwill gesture, respondent No.1 was offered a Nokia handset with new SIM card, but he did not turn up to sign the papers, which were required for completing codal formalities.
7. Learned District Forum has allowed the complaint and ordered the appellant and respondent No.2 to make the handset functional and also to pay compensation of `5,000/- and litigation expenses of `2,000/-, as aforesaid.
8. We have heard learned counsel for the parties and gone through the record.
9. Before filing the complaint, a legal notice was served by the respondent-complainant which he himself placed on record as Annexure A-1. Notice is dated 03.01.2008. A reading of this notice which was addressed to the appellant, with a copy to respondent No.2 Mohinder, shows that the complaint was not with regard to the handset, but to the defective telephone service, because at one point of time, facility of incoming calls was not available and at another time, facility of outgoing calls was also not available.
10. In the said notice, not only that there was no allegation of any defect in the handset, as is alleged in the present complaint, but also there was no allegation that respondent No.1 visited the place of work of the appellant, in December, 2007, to get the handset repaired, where he was allegedly ill treated and subjected to misbehaviour by the functionaries of the appellant.
11. Non-mentioning of the aforesaid allegations in the notice give a complete lie to the allegation made by respondent No.1 in the complaint that the appellant is the manufacturer of the handset, which fact is denied by the appellant in its reply and that when the same was taken to its place of work, its employees, not only did not repair it, but also misbehaved with him.
12. In view of the above stated position, appeal filed by the appellant is allowed and the order of learned District Forum, so far as it directs the present appellant, to make the handset functional and to pay compensation and litigation expenses jointly with respondent No.2, is set aside.
13. Learned counsel representing respondent No.2 submits that the order, as against respondent No.2 should also be set aside, because the said respondent acted only as an agent of the appellant. Submission has been noticed only to be rejected. There is no evidence on record that the handset was manufactured by the appellant. Not only this, we have returned the finding, hereinabove, that it was not manufactured by the appellant.
14. Respondent No.2 chose not to appear before the learned District Forum and to contest the allegations about the handset being defective or its having been taken by respondent No.1 to its workplace for repair with the complaint of its being defective. Not only this, respondent No.2 has chosen not to assail the impugned order, by filing an appeal.
15. Admittedly, the handset, in question, had been purchased by respondent No.1 from respondent No.2. Appellant, as already noticed hereinabove, is not shown to be the manufacturer thereof. Therefore, respondent No.2 does not stand on the same footing as the appellant and, hence, he cannot claim benefit of the aforesaid findings, returned by us.
16. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member December 14, 2012 *dinesh* [1] Whether Reporters of the local papers may be allowed to see the order?