State Consumer Disputes Redressal Commission
Borgappa vs Spice on 20 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 339 of 2013 Date of Institution : 07.08.2013 Date of Decision 20.09.2013 Mrs. Borgappa Bhagya Laxmi, now known as Talabhaktula Bhagya Laxmi, R/o #1345-B, Sector 47-B, Chandigarh 160047. Appellant/complainant. Versus 1. The Managing Director, Spice Mobiles, S Global Knowledge Park, 19A & 19B, Sector 125, Noida 201 301 (Uttar Pradesh), India. 2. The Manager, Vignesh Services, SCO No.189-190, Sector 34-A, Chandigarh. ....Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by:
Sh. Talabhaktula Srinivas Rao, Husband of the appellant, in person.
Sh. Sandeep K. Sharma, Advocate alongwith Sh. Reet Kamal Handa, Advocate for respondent No.1.
Service of respondent No.2 already dispensed with vide order dated 13.09.2013.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 04.07.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it disposed of the complaint, filed by the complainant (now appellant) with the directions to the Opposite Parties to repair the handset of the complainant, free of cost, if any defect or problem was noticed in it by the complainant.
2. The brief facts of the case, are that on 28.12.2011, the complainant purchased a Spice M7070 mobile handset of black colour from Spice Retail Ltd., SCF No.45, Phase-X, Mohali, Punjab vide Invoice No.113086292 (Annexure I) for R.3,400/-. It was stated that the said mobile was under a warranty period of one year from the date of its purchase. It was further stated that the said mobile started showing signs of malfunctioning as its camera stopped functioning. It was further stated since the mobile, in question, was under warranty, the same was reported to Opposite Party No.2, being the authorized dealer of Opposite Party No.1, for repair vide service request (Annexure II). It was further stated that the complainant also made a complaint with Opposite Party No.1 vide complaint No.0400008287 dated 17.12.2012. It was further stated that on 20.12.2012, the complainant received a SMS on her mobile No.9217201445, either from Opposite Party No.1 or Opposite Party No.2 that the mobile handset has been repaired and she was asked to collect the same. It was further stated that when the complainant visited Opposite Party No.2, to collect the mobile, it was noticed that the defects were still persisting and some of the keys of the mobile had also stopped functioning. It was further stated that the complainant once again gave the mobile, in question, to Opposite Party No.2 on 22.12.2012 vide service request (Annexure III). It was further stated that since the issue could not be solved, the complainant requested Opposite Party No.2, to either replace the mobile or repair the same on priority basis but after waiting for a long period, on 7.2.2013, she was provided with a used mobile, as a replacement, without any warranty. It was further stated that the charging point of the replaced old/used mobile had a problem just within a few days, and the complainant once again approached Opposite Party No.2 on 23.2.2013 and deposited the said mobile with it for repairs vide service request (Annexure IV). It was further stated that on enquiring about the repair of the mobile, the Opposite Parties kept on giving fake assurances, to get back to the complainant, but they never assisted her at any stage. It was further stated since then, the complainant was trying to solve the issue with the Opposite Parties but she did not receive any positive response from them. It was further stated that the mobile phone was never returned to the complainant. It was further stated that due to the deficient act, on the part of the Opposite Parties, the complainant lost all her contacts/data for the past more than two and half months and was unable to keep her mobile number switched on, as she could not buy another mobile. It was further stated that this act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties to refund Rs.3,400/- being the invoice price of the mobile, in question; pay Rs.40,000/- as compensation for mental agony and harassment besides Rs.1,000/- as costs of litigation, was filed.
3. Opposite party No.1, in its reply, took up a preliminary objection that the complaint attracted the rule of caveat emptor i.e. the buyer must take care of his/her own interest while purchasing the goods. However, on merits, it was stated that the complainant had purchased the mobile handset on 28.12.2011 and she visited Opposite Party No.2, its authorized service centre, on 17.12.2012 for getting the said mobile handset repaired, which showed that the mobile handset was in proper working condition for a year. It was further stated that the mobile handset was in proper working condition and there was no defect in the same. It was further stated that Opposite Party No.1, being a reputed Company, had created its name in the field of mobile manufacturing, in a very short span of time. It was further stated that the defective mobile was replaced with a new mobile handset and the allegation of the complainant that an old mobile handset was replaced by used mobile set was wrong. It was further stated that the old mobile handset was replaced by new one on 2.2.2013 with IMEI No.91001001342399. It was further stated that the Opposite Party once again replaced the mobile with a new mobile handset on 23.3.2013 with IMEI No.911214352813229. It was further stated that the complainant concealed the true facts as she did not attach the service request dated 26.2.2013 with the complaint. It was further stated that neither there was any deficiency, in rendering service, on the part of the answering Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. None appeared, on behalf of Opposite Party No.2, despite service, and, as such, it was proceeded against exparte by the District Forum vide order dated 07.05.2012.
5. The parties led evidence, in support of their case.
6. After hearing the authorized representative of the complainant, Counsel for Opposite Party No.1, and, on going through the evidence and record of the case, the District Forum disposed of the complaint, in the manner, as stated above, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the husband of the appellant/complainant, being her authorized representative, Counsel for respondent No.1, and, have also gone through the evidence, and record of the case, carefully.
9. Sh. Talabhaktula Srinivas Rao, Husband (authorized representative) of the appellant, submitted that the mobile handset purchased by his wife on 28.12.2011 for Rs.3,400/- was found defective within the warranty period. It was further submitted that despite repairs by Opposite Party No.2, the defects persisted. It was further submitted that though the mobile handset was swapped on 02.02.2012 with another old mobile with reference to service request dated 22.12.2012, yet the same also did not function. It was further submitted that the defects were reported to Opposite Parties No.1 and 2, and the mobile handset was deposited with Opposite Party No.2 on 23.02.2013 for rectifying the defects, but neither the mobile handset was repaired nor any further response from the Opposite Parties was received. It was further submitted that Opposite Party No.1, in its written statement, acknowledged the fact that there were problems in the mobile handset. It was further submitted that the pleas of Opposite Party No.1 in Para Nos.4 and 5 of the written statement, that the mobile handset was replaced with a new one on 2.2.2013 was wrong. It was further submitted that the averment of Opposite Party No.1 that it once again replaced the old replaced mobile handset with a new mobile handset on 23.3.2013 with IMEI No.911214352813229 was also incorrect. Lastly, it was prayed that the appeal be accepted and the impugned order passed by the District Forum be set aside.
10. On the other hand, the Counsel for respondent No.1/Opposite Party No.1 (manufacturer) submitted that the defects, in the mobile handset were rectified and thereafter, the mobile handset was replaced with a new mobile handset. It was further submitted that there was no deficiency, in rendering service on the part of Opposite Party No.1 not did it indulge into unfair trade practice.
11. It is clearly evident, from record, that the appellant/complainant purchased a mobile handset from Spice Retail Ltd., SCF No.45, Phase-X, Mohali, Punjab vide Invoice No.113086292 (Annexure I) for R.3,400/-. The same became defective, during the warranty period. Despite rectifying the defects by Opposite Party No.2, the authorized service centre of Opposite Party No.1 (manufacturer), the defects persisted and, therefore, the mobile handset was swapped by another mobile handset. It was categorically asserted, by the appellant/complainant, that the replaced mobile handset was an old one, and such replaced mobile handset also did not function and the appellant/complainant had to again deposit the same with Opposite Party No.2, for repairs, which was never returned to the complainant. Opposite Party No.1 has not produced any cogent evidence, to controvert the aforesaid pleas of the appellant/complainant. Though it produced, on record, Annexure R-1 claiming that on 23.3.2013, the defective mobile handset was replaced, but a careful perusal of the contents of the same, does not establish that the mobile handset was again replaced on 23.03.2013. This document does not bear the signatures of the customer, as well as any representative of Opposite Party No.2. In the column Engineer Remarks, NOT OK SMD CHANGE SET OK SWAP ISSUE has been mentioned, but there is no mention that the mobile handset was swapped, as was indicated in the service request dated 22.12.2012. Admittedly, the mobile handset was neither repaired nor its satisfactory replacement was provided nor its price refunded, in order to enable the appellant/complainant to purchase some other mobile. Thus, the stand of Opposite Party No.1 that the mobile handset was again replaced with a new one on 23.3.2013 is devoid of merit. Clearly, the Opposite Parties were deficient, in rendering service, and, by retaining the mobile handset, without rectifying the defects, indulged into unfair trade practice.
12. No other point, was urged, by the authorized representative of the appellant, in person, and Counsel for respondent No.1.
13. For the reasons recorded above, the appeal filed by the appellant/complainant is accepted with costs. The order of the District Forum is set aside. The complaint is partly accepted and the respondents/Opposite Parties, are jointly and severally, directed in the following manner:-
(i) to refund an amount of Rs.3,400/- to the appellant/complainant, being the invoice price (Annexure I) of the mobile handset, in question;
(ii) to pay an amount of Rs.3,000/- to the appellant/complainant as compensation for mental agony and physical harassment;
(iii) to pay cost of litigation, to the tune of Rs.1,000/-, to the appellant/ complainant;
14. This order shall be complied with, by the respondents/Opposite Parties, within a period of 45 days, from the date of receipt of its certified copy, failing which, they shall be liable to pay the amounts mentioned in Clauses (i) and (ii) of Para No.13 alongwith interest @9% p.a. from the date of filing the complaint, till the date of actual payment to the appellant/complainant, besides paying the litigation costs, as aforesaid.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion Pronounced.
20th September, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.339 of 2013) Argued by:
Sh. Talabhaktula Srinivas Rao, Husband of the appellant, in person.
Sh. Sandeep K. Sharma, Advocate alongwith Sh. Reet Kamal Handa, Advocate for respondent No.1.
Service of respondent No.2 already dispensed with vide order dated 13.09.2013.
Dated the 20th day of September 2013 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been accepted with costs. The order of the District Forum has been set aside. The complaint has been partly accepted, as per the directions given in the main order.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad