Date of Filing: 28.5.2019.

Date of Judgement: 05.08.2022

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member.

                The instant case has been filed by the Complainants namely (1)Sipra Das & (2)Arpita Das U/S 12 of the Consumer Protection Act, 1986 against the Opposite Parties for replacement of a defective mobile phone and other reliefs. 

                The brief fact of the complainant’s case is that the Complainant-1 purchased a Redmi Mobile Phone of Xiaomi brand:(IMEI NOS.86454701846754, 864547041846762) from the show room of O. P. No.1 namely A.K. Cellulars at 301, Dr. K.S. Roy Road, Jadavpur Stn. Road, Kolkata- 32 amounting to Rs, 12000/- together with Rs. 500/- as additional cost in case of device manufacturing defect within the warranty period on EMI. On 19/03/2019 as per advice of O P No. 1 she kept it in charging for 8 hours. On 20/03/2019 while she inserted a SIM card in the newly purchased mobile phone, its switch was not operating thus she was unable to access the new mobile set but the same SIM card when inserted in another phone it was responding and so the complainant no.1 went to O P No. 1 and reported the problem on that day itself and asked for replacement but the Op. No. 1 instead of replacing the same advised the Complainant No. 1 to take the mobile set to the Redmi authorised Service Centre, herein referred to as  the O P No. 2. So on 22/03/2019 both the complainants visited O P No. 2 with the defective mobile set but they did not cooperate with the complainants and also did not provide them the DOA Certificate which could help the complainants to get replacement of the disputed device from the shop wherefrom the said set was purchased.  Complainants were informed by the O P No. 2 that  due to small dent in the mobile set they were unable to provide the DOA Certificate.  Thereafter, on 24/03/2019 complainants sent an email to Xiaomi Customer Service of India informing about their grievance. On 26/03/2019 the Customer Service regretted informing that they are unable to replace the mobile set as it was purchased from an unauthorised store.  Being aggrieved for such deficiency in service the Complainants approached this Commission (the then Forum) for reliefs.

                The Complainants submitted copies of the Tax Invoice, No due certificate, Bill showing payment Receipt, Warranty Card, Note given by O P No. 2, and e-mail sent by Xiaomi Customer Service, as annexures to their complaint.

During the course of hearing the complainant filed Affidavit –in-Chief by way of evidence and also filed the Brief Notes Of Argument.

                On perusal of records it appears that inspite of service of notice and repeated opportunities given no steps were taken by the O P No. 2.  O P No. 1 contested by submitting the Written Version alleging that the complainants are not entitled to get any relief against O P No. 1 as prayed for since the warranty Card is provided by the Xiaomi, where it is mentioned that for the handset and accessories defects under normal use circumstances are at the discretion of the company, Xiaomi shall provide free charge repair/replacement service with the warranty period only after confirmation by Xiaomi authorised Service Centre as such the Op No. 1 has no liability to replace or repair the said hand set free of cost within warranty period. After filing the W.V. they refrained from contesting the case.                                                                                                                                                   

  Having gone through the statements of the complaint, evidence and other supporting documents such as invoice tax receipt, warranty card etc. there remains no doubt regarding the genuineness of those documents. From the complaint petition/ evidence adduced by the complainant and the written version of O P No. 1. The following points required determination:

i)  Whether the complainants are consumer under the Consumer Protection Act?

ii) Whether there has been any deficiency in service on the part of the opposite parties?

iii)Are the complainant/s  entitled to the reliefs as claimed for?

Decision with reasons

  It is not disputed that the Complainant No.1 purchased the mobile set for her daughter’s use being the Complainant No.2 herein and had paid the full and final consideration amount of Rs.12500/- to the OP No. 1 and to the said effect the OP NO.1 issued the Tax invoice report along with No Due Certificate and the Warranty Card with the Mobile set which ipso facto proves that the complainant(s) is/are a consumer/s under Ops as per definition given U/S 2(1) (d) of the C.P. Act 1986 and the OPs are service providers of the complainant as per definition of Section 2 (o) of the C.P. Act, 1986.

So the point No.1 is accordingly decided in favour of the complainants.

Now in order to ascertain, whether the OPs are deficient or not we have to consider the evidence/complaint petition once again. It is evident from the purchase receipt that the Mobile set was purchased from the OP no.1’s showroom on 19.3.2019, and on 20,3.2019 the complainant/s reported the defect of the Mobile set to OP no.1 and the op no.1 instead of replacing/removing the defect, merely advised the complainant/s to visit the Redmi authorised service centre, though it was the primary duty of the OP no.1 to replace the defective mobile set at once. Thus the OP no.1 intentionally avoided after sales service responsibility causing deficiency in service from its part. Next when the complainants visited the Redmi authorised service Centre i.e. the OP No 2, though checked the mobile  and found the same to be defective but simply avoided their responsibility only by stating a technical remarks on the back of the Invoice as ‘We could not process for DOA due to dent on phone’. Even after filing the instant complaint case OP no.2 never participated in the case and thus avoided its responsibility by not contesting the case though repeated opportunities were given.

 We cannot process in our mind such role of the OP No. 2, being a branded customer friendly Mobile manufacturer company & service provider if they could not process for DOA due to the dent they ought to have removed the defect to make the defective device fully operative as it was under Warranty Period. Moreover, it is not clear whether the dent was found just after receiving the device from the complainants or it occurred during the course of servicing the device. This point remains unchallenged since none contested on behalf of the op no,2. On the other hand this is taking us to a continuous thinking state that how a dent can appear when it was taken to the Service Centre if there was any dent then it could have been noticed by the OP NO.1 when the complainants visited the show-room reported the problem on 19.3.2019, the OP NO.1 never pointed out any such dent. Hence, this commission is unable to hold that the dent was caused by the complainants but this commission is inclined to hold that the dent may have been caused while the mobile set was handled by the technicians of OP NO.2 or the dent was there from the beginning due to inherent manufacturing hidden defect and the same remained unnoticed by the complainant/s. In absence of any documentary evidence it cannot be held that the dent noticed in the device is customer induced damage/ due to misuse of mobile set dent occurred.

Now let us come to the email sent by the Xiaomi Customer Service of India, brand owner, on 26/03/2019 wherein it is stated that they are unable to replace the device as it was purchased from an unauthorised store. If it is their policy it should have to be stated in the Warranty conditions.  But their Limited Warranty conditions state that the Limited Warranty starts from the day the customer received the product, limited to 10 days from the date of Invoice and eligible for free replacement if the device does not function properly within 10 days. It is nowhere stated that this Warranty cannot be availed if the product is purchased from an unauthorised store. The seller, here the O P No. 1, has issued a Tax Invoice having registered GISTIN for this purchase.  The complainants submitted a copy of internet surfing as evidence wherein it appears that the O P No. 1 is an authorized store of the brand owner. This proves that intentionally the opposite Parties have sold a defective Mobile set to the complainant.  Therefore it was bounden duty of the O P No. 2 who is working as a Service Centre, to issue DOA  Certificate to the customer/complainant as an approval so that the retail shop can replace the disputed service, but instead clearly suppressed the facts to avoid their primary duty of customer satisfaction causing not only gross deficiency in service but also adopted unfair trade practice on their part. Furthermore both the opposite parties did not co-operate with the customer in removing the defect. For such inaction of the opposite parties the complainant no.1 is suffering huge loss till date with the defective set.

Point Nos.2 & 3 are thus decided accordingly

Hence the complainant is entitled to replacement of a new mobile set of same model and same brand and other reliefs as prayed for.

 Thus this Commission thinks the complaint is maintainable on its merit and the opposite parties are jointly and severally liable. Complaint case is thus allowed and the complainants have every right to get their grievance be redressed for such deficiency in service occurred on the part of the Opposite parties.

Hence,

                ORDERED

CC/249/2019 is allowed on contest against OP No. 1 & exparte against OP No. 2.

Opposite Parties are directed to replace the defective mobile set by a new defect free mobile set of same model and same brand or to refund the cost of the mobile set amounting to Rs.12500/-along with 9% interest from the date of purchase till realisation. The Opposite Parties are further directed to pay Rs. 5,000/- to the complainants as compensation and Rs. 5,000/-  to the complainants as litigation cost. The entire payments and replacement of the mobile set will be made within 45 days from the receipt of this order failing which 10% per annum simple interest will be imposed till realisation and replacement.