Samaresh Prasad Chowdhury, Presiding Member

The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainant to impeach the final order/judgment being order No. 13 dated 14.12.2018 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-I (in short, ‘Ld. District Forum’) in Consumer complaint No. 435 of 2016. The impugned order is set out below:

“That the CC No. 435/2016 is allowed on contest with cost against the OP No. 2 and dismissed on contest without cost against the OP No. 1. The OP No. 2 is directed to refund the amount of the price of the said mobile set to the tune of Rs. 10,500/- (Rupees ten thousand five hundred) only to the complainant and compensation of Rs. 1000/- (Rupees one thousand) only for harassment and mental agony and litigation cost of Rs. 500/- (Rupees five hundred) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realisation.

The complainant is also directed to return the said mobile set to the OP No. 2 after realisation of the awarded sum.”

The appellant herein being complainant lodged the complaint before the Ld. District Forum asserting that on 23.07.2015 he purchased one Cellular Mobile Handset-LG- D 380 from OP No. 1 in cash at a sum of Rs. 10,500/-. The said mobile set was not in a sealed condition, although there was caution “Do not accept if seal is broken”. The warrantee card was also inside the box but OP No. 1 did not fill up the warrantee card and handed over the said set to the complainant. The complainant had alleged that after purchasing the said mobile set, he noticed that the mobile set was not functioning properly. Immediately, he contacted OP No. 1 but OP No. 1 did not co-operate with the complainant in replacing the same by way of a new one or to refund the amount. In this regard, all the requests and persuasions including the notice dated 16.08.2016 given by the complainant went in vain. Finding no other alternative, the appellant approached the Ld. District Forum with prayer for following reliefs, viz.- (a) refund of Rs. 10,500/-, the amount received by the OP No. 1 for the handset; (b) compensation for harassment and mental agony; (c) costs of litigation etc.

By filing written version the respondent No. 1/Opposite Party No. 1 has stated that the mobile set was purchased from their shop but it cannot be said whether there was any defect in the said mobile set or not. The OP No. 1 has also stated that being the seller of the said product, they cannot be held liable for any defect of the said mobile set.

The respondent No. 2/Opposite Party No. 2 i.e. the manufacturer of the mobile handset by filing a separate written version has stated that they cannot be held liable for the claim made by the complainant.

On evaluation of the pleadings of the parties and the evidence on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the parties, as indicated above. To assail the said order, the complainant has come up in this commission with the instant appeal.

Heard the appellant and respondent No. 1 in person and also the Ld. Advocate for the respondent No. 2 and scrutinised the materials on record including the BNA submitted on behalf of respondent No. 2.

Undisputedly, on 23.07.2015 the appellant purchased one cellular mobile handset- LG- D 380 from respondent No. 1 in cash on payment of Rs. 10,500/-. The fact remains that the respondent No. 1 is the seller of the said mobile handset to which respondent No. 2 is the manufacturer. The overwhelming evidence on record make it quite clear that mobile handset was not in a sealed condition, although, there is the caution “do not accept if seal is broken”. However, being insisted by respondent No. 1 with an assurance of one year guarantee, appellant received the mobile handset from respondent No. 1. However, after purchasing of the said mobile set, the appellant noticed that the mobile set was not functioning properly. From 02.05.2016 to 19.07.2016 the said handset was causing serious disturbances, which compelled the appellant to handover the handset to the custody of respondent No. 1 for free service. The fact remains that the handset could not be cured and in this regard, all the requests and persuasions of the appellant for repairing of the same went futile. The record reveals that on 16.08.2016 the appellant sent a notice to the respondents and to that effect a reply was sent on 25.08.2016 but of no good.

During hearing of the appeal, the appellant who appears in person, has submitted that as the mobile set is lying under the custody of OP No. 1/respondent No. 1, Ld. District Forum should not pass the order directing him to return the said mobile set to OP No. 2/respondent No. 2. He has further submitted that considering the loss suffered by him the amount of compensation awarded by the Ld. District Forum of Rs. 1,000/- is a meagre one. He has further submitted that the amount of litigation costs imposed by the Ld. District Forum amounting to Rs. 500/- is also on lesser side taking into consideration of the fact that he had to come from a distant place like Gangarampur, (Dist- Dakshin Dinajpur) for repairing of the mobile set.

The respondent No. 1, who also appears in person, did not deny the fact that the mobile set is lying in their custody and it has been submitted that being an authorised dealer, respondent No. 1 cannot be held responsible for defect of the mobile set.

Mr. Nilufar Begum, Ld. Advocate for respondent No. 2, on the other hand, has contended that respondent No. 2 as a good gesture was ready to comply with the order passed by the Ld. District Forum but the appellant has preferred the instant appeal being dissatisfied with the order of the Ld. District Forum. Ld. Advocate for the respondent No. 2 has prayed for disposal of the instant appeal when they were/are ready to comply with the order passed by the Ld. District Forum.

In this backdrop, the prayer of the appellant should be allowed to the effect that the appellant/complainant shall have no obligation to return the mobile set to OP No. 2/respondent No. 2 as per basic order passed by the Ld. District Forum.

Now, the question remains for consideration as to whether or not the compensation and litigation costs awarded by the Ld. District Forum were not in consonance with the loss suffered by the appellant. Section 14(1) (d) of the Act which is relevant for the adjudication of the dispute is as follows:

“14. Finding of the District Forum.- (1)If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the aggregations contained in the complaint about the services are proved, it shall issue an order to the Opposite Party directing him to do one or more of the following things, namely:

............

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the Opposite Party.”

The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the Opposite Party. Once the said conditions are satisfied, the consumer forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.

In Charan Singh v. Healing Touch Hospital and Ors. reported in MANU/SC/0588/2000: (2000) 7 SCC 668, the Hon’ble Supreme Court held as follows:

“12. ....... Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast Rule can be laid down for universal application. While awarding compensation, a Consumer Forum has take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

In the instant case it is evident that the appellant had purchased the mobile set on payment of Rs. 10,500/-. The respondent No. 2 being manufacturer of the said mobile set has agreed to repay the entire amount of Rs. 10,500/-. Therefore, when the appellant has got refunded of the entire amount of Rs. 10,500/-, certainly he will be in a position to purchase another new mobile set and the loss suffered by him is not of that ilk that he is entitled to compensation of more than Rs. 1,000/-. Therefore, we do not find any reason to hold that the compensation awarded by the Ld. District Forum was unjust. We must not be obsessed with the object of law that a consumer forum should not be used for unjust enrichment.

The litigation costs awarded by the Ld. District Forum to the tune of Rs. 500/- also does not appear to be unreasonable because the appellant himself has conducted the case before the Ld

. District Forum and there is no instance that in order to purchase the mobile set he had to come from a long way i.e. from Gangarampur ( Dist- Dakshin Dinajpur) to Kolkata. In fact, he had to come for some other purpose at Kolkata and at that point of time he purchased the mobile set and visited the shop of respondent No. 1 for its repairs. Therefore, litigation costs imposed by the Ld. District Forum amounting to Rs. 500/- also does not appear to be unreasonable with. For the reasons aforesaid, the impugned final order/judgment being order No. 13 dated 14.12.2018 is modified only to the extent that the complainant/appellant shall be have no obligation to return the mobile set to the OP No. 2/respondent No. 2 after realisation of the awarded sum. However, the other part of the order is maintained. With the above observations, the instant appeal stands disposed of. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit- I for information.