Kamal Singh Vs. Nokia Care and Another - Court Judgment

Maj. Gen. S.P. Kapoor, Presiding Member:

1. This is an appeal against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 17.10.2008 passed in Complaint Case No. 344 of 2008 : Sh. Kamal Singh v. Incharge, Nokia Care and Another.

2. Briefly stated the averments made in the complaint are that the complainants brother-in-law namely Suresh Chauhan purchased one Nokia Mobile Set, Model 6151, for Rs. 10,800 on 13.10.2006 from M/s. Harbans Singh and Co., Sector 22, Chandigarh vide Invoice (C-1). As per the complainant, Sh. Suresh Chauhan gifted the said mobile set to the complainant and the complainant was using the said mobile set from the date of its purchase. It was averred that the said mobile set started giving problems within a week after its purchase and on 26.10.2006, the complainant approached OP No. 1, authorized service centre of OP No. 2, who told the complainant to deposit an estimated sum of Rs. 1,500 as repair charges despite the set being well within warranty period. It was averred that the complainant paid Rs. 112 as advance payment and handed over the mobile set to OP No. 1 vide receipt (C-3). It was next averred that OP No. 1 only mentioned one problem of “On Off switch not working” whereas the complainant also reported other problems like unclear sound and hanging of the mobile set. As per the complainant, he was told to visit after 4-5 days and on 4.11.2006, when he approached OP No. 1, he was informed that the mobile set had been sent to Bangalore for repair and the complainant was asked to visit again after a week. Thereafter, it was averred by the complainant, that he again visited OP No. 1 many times but OP No. 1 continued on making excuses on one pretext or the other and finally, he was told by OP No. 1 that as and when the set was received, the complainant would be informed telephonically. As per the complainant, till the filing of complainant, he had received no information from OP No. 1 regarding the repair and delivery of his handset. Alleging the above act of OPs to be a deficiency in service, this complaint had been filed seeking refund of price of the mobile set as well as compensation for mental tension and harassment besides cost of litigation.

3. The version of OP No. 1 is that as per warranty terms, the complainant was not a consumer as the mobile set was sold to Sh. Suresh Chauhan and not to the complainant. It has also been stated by OP No. 1 that the mobile set in question was no more covered under the warranty and could not be repaired free of cost and further it has been stated that the hand set was water/liquid logged, a defect, which was not covered within the limited warranty. It has also been stated by OP No. 1 that the complainant had been told that the mobile set was water logged and damaged due to his own negligence and estimated cost of repairs was Rs. 4,500, which the complainant had agreed to pay and had paid Rs. 112 as advance payment. It is further the case of this OP that the complainant visited its workshop only once and not thereafter because he had to make the balance payment of Rs. 4,388 as per estimate already given to him. It has also been stated by OP No. 1 that the set is lying repaired for delivery but the complainant did not turned up to take the same. OP No. 1 has offered to deliver the handset to the complainant on payment of balance payment.

4. OP No. 2 was initially represented through Mr. Alok Batara, Advocate who took several adjournments to file reply and evidence, which was subject to payment of costs. He, however, neither paid the cost nor filed any evidence and hence, the defence of OP No. 2 was struck off.

5. The learned District Forum based on perusal of Annexure C-3 dated 26.10.2000 has recorded that the mobile set in question was delivered to OP No. 1 with the fault of “power does not switch off” while the problem narrated being “on off switch not working” and in the column of “warranty”, “non warranty” is written. It is further recorded that the mobile set was to be delivered to the complainant on 1.11.2006 after repairs. The learned District Forum, based on the plea of OP No. 1, took cognizance of the fact that the mobile set was under a limited warranty, which only extended to the original first end user of the product and was not transferable to any other subsequent purchaser/end user. However, since, the complainant was the beneficiary of the mobile set, thus, the learned District Forum concluded that he was very much a consumer as defined under Consumer Protection Act, 1986. On merits, the learned District Forum has recorded that OP No. 1 has not placed any evidence on record, which could prove that the mobile set was water logged and that they had repaired the mobile set to that extent. Further, after perusal of Annexure C-3, it concluded that the estimate of repairs was only Rs. 15,000 against which advance payment of Rs. 112 had been made by the complainant and therefore, the learned District Forum was of the view that the plea taken by OP No. 1 that the estimate of repairs amounted to Rs. 4,500 was false. In view of this analysis of the complaint, the learned District Forum held that OP No. 1 was only entitled to charge the complainant an amount of Rs. 1,388 (Rs.1,500 – Rs. 112=Rs. 1,388) and was, thereafter, required to handover the mobile set in fully repaired condition to the complainant. Accordingly, vide the impugned order, the learned District Forum directed OP No. 1 to supply the mobile set in question to the complainant free from any defect and functional error immediately on complainants depositing the balance amount of Rs. 1,388. The learned District Forum, however, did not grant any compensation or costs of litigation to the complainant.

6. Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal. The appeal having been taken on board, notice was sent to the respondent and the record of complaint case was summoned from the learned District Forum. Sh. Kamal Singh, appellant/complainant appeared in person whereas Mr. Manish Joshi, Advocate appeared as proxy for Mr. Jaspal Singh, Advocate for respondent No. 1 and Sh. Anish Gautam, Advocate appeared for respondent No. 2.

7. Mr. Kamal Singh, appellant/complainant submitted that his main grouse against the OPs was that they had taken inordinately long to repair the mobile set and had not returned the same after due repairs even till the date of filing the complaint. As per the complainant, this action of OPs forced him to buy another mobile set to keep in communication. He, therefore, submitted that even though the learned District Forum had recorded in the impugned order that there was delay in the repair of the mobile set, yet the learned District Forum did not pass any orders with regard to the payment of compensation or the litigation costs. He prayed that he be suitably compensated.

8. Mr. Anish Gautam, Advocate, learned Counsel for respondent No. 2 submitted that the mobile set did not carry any warranty for the complainant as the warranty was extended only to the original buyer/original end user and it did not automatically shift to the complainant. On inquiry from the Bench, as to how much time was in fact taken by OP No. 1 to repair the mobile set in question, the learned Counsel sought time for getting the details from OP No. 1 but in spite of having been given the time, he was unable to indicate the actual time taken by OP No. 1 for repairing the mobile set.

9. We have gone through the record on file as well as the impugned order and have heard the appellant in person and the learned Counsel for the OPs.

10. The main case of the complainant is that there was inordinate delay on the part of OPs in repairing the mobile set even though, he had agreed to get the repairs done on payment and had also paid a sum of Rs. 112 as an advance. Admittedly, the mobile set was to be handed over to the complainant after repairs on 1.11.2006. It is also on record that at the time of the said mobile set being handed over to OP No. 1, the defect stated in the mobile set was that the on ff switch was not working, due to which, the power did not switch off. It is also the case of OP No. 1 that the mobile set had been repaired and the complainant himself did not come to collect the mobile set as he was required to pay a sum of Rs. 4,388 towards the repair charges of the mobile set. However, OP No. 1 has placed no evidence on record to indicate as to when was the mobile set repaired and whether any intimation of the mobile set having been repaired was ever given to the complainant. It is further to be noted that as per Annexure C-3, which is not denied, the estimate of repairs given was for Rs. 1,500 and there is no other evidence to prove the story of the OPs that the complainant had been told that the repairs would cost a total of approximately Rs. 4,500. There is also no evidence on record to confirm the version of OPs that the mobile set in question had been suffering from the defect of water/liquid logging and it had been repaired for the same defect. Thus, from the evidence on record, it is quite apparent that OPs are concocting a story to cover their deficiency in service. It is quite evident from the evidence on record that the mobile set only had a problem with regard to “on-off switch” and for the repair of which, an estimate of Rs. 1,500 was given by OPs. Since, the complainant had himself voluntarily agreed to get the said mobile set repaired on payment and had even given a sum of Rs. 112 as advance to OPs, it is not believable that he would not come back to collect the repaired mobile set, which admittedly, was purchased for a sum of Rs. 10,800. From the evidence on record, thus, it is clearly established that OPs concocted a false story and unduly delayed the repair of the mobile set and subsequently, delayed its handing over back to the complainant after repairs. We, therefore, find the OPs guilty not only of deficiency in service but also find them guilty of unfair trade practice because of which, the complainant has been put to a lot of harassment, mental agony and financial loss, for which, he needs to be compensated. It is seen that even though, the learned District Forum vide the impugned order has directed the OPs to give the repaired set to the complainant after receiving the balance amount of Rs. 1,388, the learned District Forum has not awarded any compensation or the cost of litigation to the complainant and no reason for the same has been given in the impugned order.

11. From the facts and circumstances of the case, as stated above, the complainant is definitely entitled to compensation for harassment, mental agony and financial loss caused to him and for having been dragged into an unwarranted litigation. Therefore, in our considered view, the impugned order needs to be modified to this extent.

12. Consequently, the appeal is allowed and the impugned order is modified to the extent that the OPs are also directed to pay the complainant a sum of Rs. 5,000 as compensation for harassment, mental agony and financial loss and also pay the complainant another amount of Rs. 1,100 as cost of litigation. It is further directed that these directions be complied with within a period of 30 days from the date of receipt of certified copy of this order failing which the amount of compensation of Rs. 5,000 shall carry interest @9% per annum from the date of filing the complaint till actual payment subject to this modification the impugned order is upheld.

13. Copies of this order be sent to the parties free of charge.