DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __28_ _ OF ___2018
DATE OF FILING : 28.2.2018 DATE OF PASSING JUDGEMENT: 6.12.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Juthika Majumder, wife of Utpal Majumder of 41, Vivek Park, Kamdohari, Garia, Kolkata – 84.
O.P/O.Ps : 1. Proprietor of Skyline Communication, P.S Sonarpur, Garia Main Road, Kolkata – 84.
2. Skyline Communication.
3. Director of XiaomiTechnology Pvt. Ltd. 8th floor, Tower-1, Umiya Business Bay Marathathalli, Sarjapur, Outer Ring Road, Bangalore- 560103.
4. Xiaomi Technology India Pvt. Ltd. 8th floor, Tower-1, Umiya Business Bay Marathathalli, Sarjapur, Outer Ring Road, Bangalore- 560103.
_______________________________________________________________________
J U D G M E N T
Sri Ananta Kumar Kapri, President
Unable to get proper service of repairing of his mobile set, the complainant has approached this Forum by filing the instant case against the O.Ps under section 12, C.P Act, 1986, alleging deficiency in service.
The facts leading to the filing of the instant case may be epitomized as follows.
O.P nos. 1 and 2 are dealers of the mobile set ,purchased by the complainant. O.P nos. 3 and 4 are manufacturing companies engaged in marketing , sale and service of mobile product of O.P nos. 1 and 2. The complainant purchased a mobile set ,IMEI no. 865686035951482 manufactured by the O.P nos. 3 and 4, for Rs.9499/- on 19.8.2017 from the shop of O.P nos. 1 and 2. After a few months, the mobile set did not function and, therefore, the complainant took it to O.P-1 who detained the same from 19.1.2018 to 26.2.2018 for repair. But repairs were not done and the mobile set was returned to the complainant by the O.P-1 with remark that the battery physically damaged and the mobile set tampered. Now, the complainant prays for repair or in the alternative, replacement of the mobile set and hence arises the instant case.
O.P nos. 1 and 2 have not turned up to contest the case inspite of service of summons ,vide postal track report kept in the record and, therefore, the case is heard exparte against them.
It is O.P nos. 3 and 4 who have filed written statement contending inter alia that the complainant approached the authorized service center i.e O.P nos. 3 and 4 on 19.1.2018 with a complaint regarding the mobile set. The Service Engineer of the Authorized Service Center duly received the product and also examined the same. On examination ,it was found that the product had suffered battery damage and main board damaged and, therefore, an estimated cost for repairing the product was charged from the complainant, as the product was out of warranty owing to physical damage to the product. The complainant refused to pay cost for repair and, therefore, the product was delivered back to the complainant without repair. There is no deficiency in service on their part and, therefore, the case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are there any deficiency in service on the part of the O.Ps as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant vide his petition dated 11.6.2018. Evidence on affidavit is filed by O.P nos. 3 and 4 and the same is kept in the record .
DECISION WITH REASONS
Point no.1 & 2 :
The sale of the mobile set to the complainant by the O.P nos. 1 and 2 is not disputed. What is disputed only is that the said set was returned to the complainant by the O.P nos. 1 and 2 for the reason that the set went out of warranty owing to damage caused by the complainant. According to the submission of the contesting O.Ps, the battery of the set was damaged and the main board of the mobile set was also damaged due to self repair by the complainant. A battery requires replacement whenever it gets damaged and this phenomenon is known to all. There is warranty of the company to change the original battery, charger and other accessories packed with the product within 6 months of the sale of the product. The product was sold to the complainant on 19.8.2017 and the same was brought to the O.P nos. 1 and 2 for repair on 19.1.2018 i.e within the warranty period of 6 months from the date of purchase of the product by the complainant. So, in the circumstances the company i.e O.P nos. 3 and 4 and also O.P nos. 1 and 2 are bound to replace the damaged battery by a new one, as terms of the warranty agreement contained such provision.
Now comes the question whether the main board of the product has actually been damaged as alleged by the contesting O.P. It is the version of the contesting O.Ps that the main board of the product was damaged by self repair and, therefore, the warranty which was given to the complainant expired. The company will have to prove by sufficient evidence that the main board of the product got damaged . No evidence has been brought by the company before the Forum to prove that the said damage took place in the said product. We do not know what kind of damage has taken place to the said product. No particulars of damage has also been provided to us by the O.P nos. 3 and 4. The plea of the product being damaged in its main board is raised by the O.P nos. 3 and 4 and, therefore, the burden of proof lies upon them. They could have substantiated this plea of them by furnishing an expert opinion. But no such expert opinion has been produced by them to substantiate their contention. In absence of such evidence, we feel constrained to say that mere averment to the effect that the main board has suffered damage due to self repairs by the complainant is not sufficient to prove that the main board of the products sustained any kind of damage, resulting in violation of the warranty of the product. The product was within the period of warranty when it was presented to the O.P nos. 1 and 2 for repairs and the O.Ps were bound to repair it without demanding any cost from the complainant. But they demanded the cost of repair from the complainant, as goes the version of the O.P nos. 3 and 4 ,on the plea that the product went out of warranty. Such a plea taken by the O.P nos. 3 and 4 appears to be a flimsy one and such plea was taken by the O.P nos. 3 and 4 only to avoid their liability under the warranty given by them for the product of the complainant. The complainant is entitled to get the product repaired without payment of any cost to the O.Ps.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 3 and 4 and decreed exparte against O.P nos. 1 and 2 with a cost of Rs.5000/-.
The O.Ps are directed to repair the mobile set of the complainant without taking any kind of payment from him and to return the same to the complainant with extension of the period of warranty for three months, within a month of this order ,failing which the O.Ps will have to pay compensation of Rs.25,000/- to the complainant. If the order is not complied with by the O.Ps ,the complainant is at liberty to execute this order through the machinery of this Forum.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
