BHARTI AIRTEL LIMITED Vs. ANIL MALHOTRA

JUDGEMENT

(1.) THIS appeal has been filed against order dated 12.3.2009 passed by District Consumer Disputes Redressal Forum -II, U.T., Chandigarh in complaint case No. 114 of 2009. The contextual facts in brief are as under.

(2.) THE respondent/complainant pur -chased a Blackberry handset from The Radius, Sector 8 -C, Chandigarh OP No. 1 vide bill No. 21 dated 9.8.2008. As per facts stated in the complaint, the bill issued to him with the handset gives warranty of one year and is subject to the jurisdiction of Chandigarh. The set in question CURV -8310 model with IMEI No. 354005029700649 and PIN No. 254E63BD. The complainant has stated that the service provider M/s. Bharti Airtel assigned No. 97799 -09209 to him. The grievance of the complainant is that though he was assured by the OPs that any complaint/problem regarding the set in question shall be attended at Chandigarh by visiting the premises of the complainant personally as no authorized service station was there in Chandigarh, OP No. 1 being a sale outlet only and branch collecting office of OP Nos. 1 and 2 at Chandigarh. It is submitted that the Blackberry set in question could be used for e -mail after getting connection from OP Nos. 2 and 3 only as they had monopoly in the field at the relevant time. The respondent opted for a half -yearly plan of having unlimited e -mails with unlimited edge against charges of Rs. 3999.

(3.) THE grievance of the complainant is that trackball of the handset in question often stopped leading to a halt in its working. The first complaint was lodged on January 10th, 2009 as the trackball was functioning sideways only and did not move up and down. The intimation of the problem was registered with OP Nos. 1, 2 and 3 vide e -mail of the same day, copy on record Annexure C -8. The auto acknowledgement dated 10, 11 and 12th January, 2009, promised prompt action on the problem in question, however it is alleged by the complainant no call was received by him and even the reply to his e -mails were not received as promised. It is submitted that the OP No. 1 when contacted, informed the complainant that it was a sale outlet only for receiving the payments. It is alleged that OP Nos. 2 and 3 do not have any service centre in the city of Chandigarh in spite of having good clientele in the city. The next complaint on record is dated 12.1.2009 (Annexure C -12) in reply to which the OPs expressed regrets with a request to the complainant to approach Bharti Airtel at Industrial Area, Mohali. The complainant protested against the poor after sale service by the company and was harassed him due to non -inaction on the part of OPs, though verbal promises for the same was given to him. The complainant has alleged that he is a senior partner of M/s. Malhotra and Malhotra Associates, are offering legal services at international level having important clients who are NRIs, overseas corporates and foreign law firms besides individual foreign clients, embassies and high commissions. The handset in question was purchased by him for easy and swift communications through the medium of internet as his clients from the different parts of the world need immediate legal assistance, advice, help or legal representations. It is alleged that due to lack of proper after sales services facilities and complaints of non -functional set which is not attended properly by the OPs, under the period of warranty, the complainant was handicapped as he could not check his e -mails. It is also alleged that telephonic inquiries made to Airtel Office, Mohali were not attended which has been alleged as deficient services on the part of OPs. The complainant on 14.1.2009 was contacted by OP No. 2 confirming the defect in the trackball which needed replacement for which it was required to send the Bangalore and the period of one month was required for the repairs. It is submitted by the complainant that the full onus of warranty and all the liabilities arising or accruing thereto is on the OPs. It is also stated by the complainant that the OPs offered a stand by handset on January 17th, 2009. It is alleged by the complainant that defective handset suffering from inherent manufacturing defect has been sold to him resulting in harassment and distress to him, in addition to the depriviation of use of the instrument for the professional requirement and he suffered financial losses consequently. It is alleged by the complainant that since the handset in question is suffering from inherent manufacturing defects the OPs are deficient in services rendered to him. It is further stated that since the OP Nos. 2 and 3 do not have any office at Chandigarh and are carrying on their business through OP No. 1 they are guilty of restrictive trade practices under Section 2(1)(nnn) as they are taking advantage of their role as a service provider without disclosing to the consumers that they do not have any service center or repair centre in Chandigarh and the consumers it comes to their knowledge after any defect arises that the complaint has to be attended at Mohali. The complainant has also alleged that the OPs are indulging in unfair trade practice by falsely misrepresenting consumers in Chandigarh of possessing the facility and services which are not in existence in Chandigarh are available in Mohali as a stop - gap arrangement, as in the event of defect, the set has to be sent to Bangalore. It is also alleged that false and misleading representation for the warranty and guarantee of the product is given and thus they are guilty of unfair trade practice under the Act. The following case law has been cited in support. West Bengal Agro Industries Corporation v. Bijoy Kumar, 1999 3 CPJ 7. Samsung India Electronics v. Bindu, 2005 4 CPJ 162 H and P. Hind Motors v. Lakhbir Singh,2009 2 CPJ 249. Controls and Switchgears Private Limited v. Daimler Chyrsler, 2007 4 CPJ 1. In the prayer clause a direction has been sought against the OPs to provide him with a brand new Blackberry set or in the alternative to refund the full price @ 18% p.a. from the date of purchase, compensation of Rs. 1 lac for the harassment, agony and deficient services, to award punitive damages (to be quantified by the Court for anti -consumers, monopolistic deficient and aggressive attitude adopted by the OPs and for unfair and restrictive trade practices indulged in by the OPs. Compenation on account of professional losses caused to the complainant by the deficient services due to deprivation of the use of Blackberry set from January 10th, 2009 onwards and for the refusal to replace the set under Section 14(1)(hb) and (hc) of the Act has also been prayed for. A direction has been sought against the OPs to discontinue the above practices. Costs of litigation (to be quantified by the Court) and any other relief to which the complainant is found entitled in the facts and circumstances of the case has also been prayed for.