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Mobile Store v/s Subal Saha & Another


Company & Directors' Information:- E-STORE INDIA PRIVATE LIMITED [Active] CIN = U51221TG2005PTC045040

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- MOBILE-X PRIVATE LIMITED [Active] CIN = U64202TN2000PTC044905

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- D C STORE PRIVATE LIMITED [Active] CIN = U00000DL2001PTC110082

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Case No. A28 of 2018

    Decided On, 18 September 2018

    At, Tripura State Consumer Disputes Redressal Commission Agartala

    By, THE HONOURABLE MR. JUSTICE U.B. SAHA
    By, PRESIDENT & THE HONOURABLE MR. NARAYAN CHANDRA SHARMA
    By, MEMBER

    For the Appellant: Pradip Chakraborty, Advocate. For the Respondents: R1, Bimal Kanti Nath, Advocate, R2 & R3, Absent.



Judgment Text


U.B. Saha, President

1. The instant appeal is filed by the appellant, Mobile Store, Gulmohar House (hereinafter referred to as opposite party No. 2) against the judgment dated 7.3.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No. C.C.120 of 2017 whereby and whereunder the learned District Forum directed the opposite party No. 2 to replace the mobile phone by a new one and the opposite party No. 3 to pay compensation of Rs. 7,000 to the petitioner. Payment is to be made within two months, if the payment is not made within 2 months, it will carry interest @ 9% per annum. As there is delay in preferring the appeal, the appellant also filed an application for condoning the delay of 99 days in preferring the appeal.

1. Today is fixed for order on condonation petition.

2. Heard Mr. Pradip Chakraborty, learned Counsel appearing on behalf of the opposite party No. 2, the appellant herein, as well as Mr. Bimal Kanti Nath, learned Counsel appearing for the respondent No. 1 (hereinafter referred to as complainant). None appeared on behalf of the respondent No. 2, Apple India Pvt. Ltd. (hereinafter referred to as opposite party No. 1) and respondent No. 3, F1 – Info Solutions & Service Pvt. Ltd. (hereinafter referred to as opposite party No. 3).

3. Facts needed to be discussed are as follows:

2. The complainant filed one application under Section 12 of the Consumer Protection Act, 1986 before the learned District Forum alleging that he purchased one i-Phone manufactured by Apple India Pvt. Ltd. (hereinafter referred to as opposite party No. 1) from the showroom under the name and style ‘Mobile Store, Gulmohar House’ owned by the opposite party No. 2 on 27.10.2016 paying an amount of Rs. 25,000, but after two months of purchase of the said i-phone, the same was not working properly. Thereafter the complainant made contact with the opposite party No. 2, Mobile Store and the opposite party No. 2 informed him that as the service centre is not available at Agartala so he has to send it to Guwahati. Accordingly, the opposite party No. 2 sent the i-Phone to F1 - Info Solutions & Service Pvt. Ltd. (hereinafter referred to as opposite party No. 3) at Guwahati, but it was not repaired and returned without any action by the service centre, the opposite party No. 3 with the report ‘Cx did not approve estimate’. The mobile manufacturing company did not take any action. The complainant suffered huge loss for which he filed the complaint petition and claimed Rs. 50,000 as compensation from the opposite parties.

1. The opposite party No. 3, F1 - Info Solutions & Services Pvt. Ltd. did not appear even after receipt of the notice. So the case was proceeded ex parte against the said opposite party.

2. The opposite party No. 2, Retail Seller of i-Phone appeared and filed written statement denying the claim. The opposite party No. 1 Apple India Pvt. Ltd. also filed written objection stating that warranty does not apply in case of damage found in the i-Phone. It is further stated that complainant concealed and suppressed the material fact in his complaint petition.

3. On the basis of the pleadings of the parties, the learned District Forum framed the following points for deciding the case:

(i) Whether the mobile phone was defective and no service provided for its repairing?

(ii) Whether there was deficiency of service by the O.Ps. and petitioner is entitled to get compensation?

1. Respondent-complainant pro-duced the Cash Memo issued by the opposite party No. 2, Retail Seller of the i-Phone, Service Delivery Challan and also filed his affidavit-in-chief and examined himself as P.W.1, who has been cross-examined by the opposite party No. 1.

2. Opposite party No. 2 neither adduced any evidence by way of filing affidavit-in-chief nor produced any witness before the learned District Forum.

3. Mr. Chakraborty, learned Counsel while urging for condoning the delay and admission of the appeal would contend that the delay has been properly explained. Thus it would be proper for this Commission to condone the delay and in consequent thereto, admit the appeal.

4. Mr. Nath, learned Counsel appearing for the respondent-complainant submits that though he has filed the objection to the condonation petition, but he is not pressing the same subject to the appeal is taken for final disposal at the admission stage itself.

5. In view of the above, the prayer for condoning the delay of 99 days is hereby condoned. The condonaiton petition is accordingly, disposed of. Appeal is taken up for admission hearing.

3. As agreed to by the learned Counsel appearing for the parties, the appeal is taken up for final disposal at this stage.

1. Mr. Chakraborty, learned Counsel while urging for setting aside the impugned judgment admitted that the opposite party No. 2 did not adduce any evidence before the learned District Forum except filing the written statement. His further contention is that the retail seller of the i-Phone i.e. the opposite party No. 2 is not liable to replace the i-Phone (mobile set) purchased by the respondent-complainant as directed by the learned District Forum. He again submits that if there is any defect found in the i-phone, then the opposite party No. 1 is responsible for the same.

2. On the other hand, Mr. Nath, learned Counsel while opposing the contention of Mr. Chakraborty and supporting the impugned judgment would contend that the written statement cannot take the place of evidence. More so, the opposite party No. 2 even did not cross-examine the respondent-complainant. Hence, it has admitted the evidence of the respondent-complainant.

3. We have gone through the impugned judgment from which it appears that admittedly the respondent-complainant purchased the mobile phone from the opposite party No. 2 and the said phone was handed over to the opposite party No. 2, as asked by them to send the defective mobile to the service centre of the opposite party No. 3. It is also admitted position that opposite party No. 2 sent the mobile set to the service centre, the opposite party No. 3 at Guwahati. We have also gone through the service delivery challan and found that ‘problem reported was frozen at Apple logo’. In the delivery challan it is also mentioned that ‘Cx did not approve estimate’. Nothing stated about the estimate and why it is not approved. The learned District Forum very rightly in paragraphs-11 and 12 of the impugned judgment came to a conclusion that the opposite party No. 1, Apple India Pvt. Ltd. is not liable to pay compensation, but the opposite party No. 2 being the seller having not disclosed to the purchaser, the respondent-complainant that service centre is not available at Agartala committed wrong and such wrong is deficiency in service and unfair trade practice. The learned District Forum rightly directed the opposite party No. 3, Service Centre to pay Rs. 5,000 to the complainant for its deficiency in service and Rs. 2,000 as cost of litigation, in total Rs. 7,000 and opposite party No. 2 was directed to replace the mobile phone by a new one. Paragraphs-11 and 12 of the impugned judgment are quoted hereunder for better appreciation:

“11. We have gone through the Warranty as produced and found that restriction not given in respect of estimate. From the written statement of O.P. No. 2 it is found that once the set was repaired but after some days again the set was not working. The service centre did not point out any manufacturing defect. Petitioner did not say anything about manufacturing defect. The warranty coverage is one year. Mobile set was not working within one year. Warranty and the accessory box was deposited with the seller. The seller of the mobile set did not disclose to the purchaser that service centre is not available at Agartala. This is deficiency of service and unfair trade practice by O.P. Petitioner in his evidence stated that at the time of sale O.P. No. 2 assured him that defective set will be replaced by a new one if the defect occurs within one year. The defect occurs on 17.2.17. He requested the O.P. No. 2 for replacement but he denied. So this is also unfair trade practice by O.P. No. 2, seller.

12. From the evidence on record, the deficiency of service by the seller of the mobile, proprietor of the Mobile Store and the Service Centre is transpired. Service Centre without assigning any reason did not repair the mobile phone. As there is no manufacturing defect O.P. No. 1, Apple India Pvt. Ltd. is not liable to pay any compensation. We direct the seller of the I-phone, proprietor of mobile Store to replace the mobile by a new one. We also direct the O.P. No. 3, F1- Info Solutions & Service Pvt. Ltd. to pay Rs. 5,000 to the petitioner for his deficiency of service and Rs. 2,000 for litigation cost, total Rs. 7,000. O.P. Nos. 2 and 3 are liable to replace the mobile phone and pay compensation. No liability fixed on Apple India Pvt. Ltd. Both the points are decided accordingly.”

1. We are in agreement with Mr. Nath, learned Counsel that mere filing written statement is not enough unless evidence is adduce by a party to disprove the contention made by the complainant in the complainant petition. In the instant case it is the admitted position that the opposite party No. 2 though filed the written statement, but did not adduce any evidence and

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even not cross-examined the respondent-complainant, meaning thereby, they have admited the contention made by the respondent-complainant in his evidence. As Mr. Nath has submitted that opposite party No. 3 has already complied with the direction given to them by the learned District Forum, it is not necessary on our part to say anything about the opposite party No. 3. 4. The appellant-opposite party No. 2 is to provide a new mobile phone to the respondent-complainant as directed by the learned District Forum. In the result, the appeal is dismissed being devoid of merit. No order as to costs. However, if the opposite party No. 2 has any grievance against the opposite party No. 1 as contended by Mr. Chakraborty, then the opposite party No. 2 can take up the matter with the opposite party No. 1 and if the opposite party No. 2 will take up the matter with the opposite party No. 1, then the opposite party No. 1 will do the needful in accordance with law. Send down the records to the learned District Forum. West Tripura, Agartala.
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