Haryana

Panchkula

CC/233/2019

RAVINDER. - Complainant(s)

Versus

AJAY ENTERPRISES. - Opp.Party(s)

RAJESH BURA,RAVINDER KUMAR & SHAMMI SAROHA.

29 Sep 2023

ORDER

N1412, Served  by      Ajay Sharma, Cabin No.2, SCO No.207, First Floor, Sector-14,         Panchkula, Haryana through its properties (Authorised Service   Centre of Xiaomi Mobiles).

3.     Home Credit India Pvt. Ltd. 3019, Dakshin Marg, Sector 22-D, Sector-22, Chandigarh- 160022, through its Branch Manage      (Financer of Mobile)

4.     Xiaomi Technology India Private Limited, 8^th Floor, Tower-1,      Umiya Business Bay Marathalli-Sarjapur, Outer Ring Road,     Bangalore, Karnataka-560103, India(Through its Managing   Director).                                                                                                                                                                                                                                                 ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh.Shammi Saroha, Advocate for the complainant.

                        OPs No.1 & 2 already proceeded ex-parte vide order                                dated 18.06.2019.

                        Sh. Saurabh Gulia, Advocate for the OP No.3.

                        Ms. Jyoti Rani, Advocate for OP No.4.

 

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant, as per the advice of OP no.1, had purchased a new Xiaomi Redmi MI-A2 Gold, bearing IMEI No. 8681130032888238 amounting to Rs. 17,499/- vide invoice no.2657 dated 04.09.2018 from it; he had used the mobile set very carefully and as per guidelines given in the user guide but the same had started giving problem such as no sound in speaker while calling, slow charging, receiver low sound in non calling state, Auto switches off/on, heat up, hanging problem, network drop; he visited the shop of the OP No.1 several times for removal of the said defect in the said mobile, but the OP No.1 did not pay any heed to his genuine request and put off the matter on one pretext or the other. It is stated that the complainant visited the service centre i.e. OP no.2 on 30.11.2018 seeking rectification of the defects. The OP no.2 had taken the mobile set and issued the job-sheet no.1921088VP03337 dated 14.02.2019 and returned the mobile set to the complainant after making necessary repairs. The complainant was assured that all defects of the mobile set had been removed and no problem would occur in future but the mobile set again started giving the same problem and he(complainant) had to use the mobile set in handsfree mode. It is stated that, on 22.03.2019, he again visited the shop of the OP no.2, who had kept the mobile set with it and returned the same after repairs but the defects were not removed. It is stated that he had to purchase a new mobile phone Vivo V-11 Pro on 10.10.2018 from Reliance Retail Limited, SCO No.322-323, Sector-9, Panchkula, as the phone purchased from OP no.1 was not working properly. It is stated that the official of OP No.2 i.e. authorized service centre had told the complainant that the company had stopped the production of the same model and thus, the spare parts of the said mobile set were not available with them and as such, it was not possible to carry out the necessary repairs. It is stated that the OPs had failed to rectify the defects within warranty period. A legal notice was sent to OPs on 03.04.2019, which had failed to evoke any positive response from the OPs. Due to the act and conduct on the part of the OPs, the complainant has suffered great mental agony, physical harassment and financial loss; hence, the present complaint.

2.Notice were issued to the OPs No.1 & 2 through registered post, which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to them; hence, they were deemed to be served and thus, due to the non appearance of OPs No.1 & 2, they were proceeded ex-parte by the Commission vide its order dated 18.06.2019.

                Upon notice, the OP No.3 has appeared through its counsel and filed written statement contesting the complaint by raising preliminary objections that there was no deficiency in service on its part as it is a non banking financial company and engaged in the business of granting loans for the purchase of consumer durables. It is stated that it has no role in the sale or repair of the mobile set in question. It is alleged that it was neither the necessary party nor the proper party in the present complaint; hence, it is prayed that the present complaint is liable to be dismissed qua OP no.3. On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the present complaint is liable to be dismissed.

                Upon notice, the OP No.4 has appeared through its counsel and filed written statement with the averments under the heading of factual background that the OP No.2 is an authorized service centre of OP no.4; the complainant had purchased a handset sold under the Mi brand, namely, Redmi Mi-A2 on 09.04.2018 for Rs.17,499/- bearing IMEI No.8681130032888238. It is stated that all Mi and Xiaomi brand mobile phones sold within India are sold under a standard set of warranty terms and conditions.  The warranty terms are available at the OP’s No.4 website http://www.mi.com/in/service/. The said warranty terms are specific and limited warranty terms, offered in connection with all Mi and Xiaomi brand phones sold within India, including the product purchased by and delivered to the complainant. On 30.11.2018 & 14.02.2019, the complainant approached the authorized service centre of the OP no.2 with issues related to the Product. The complainant informed the technician of the authorized service centre of OP No.4 that the complainant was facing issues related to the Product, i.e. ‘speaker no sound’ & ‘receiver low sound’. The service engineer duly recorded the issue in Job-sheets and requested the complainant to wait until the examination/inspection was completed. After examining and reviewing the Product at the service centre, the defects related to the product were duly rectified by the technicians of the authorized service centre of the OP No.4, free of cost as per the standard applicable warranty conditions and the product was duly returned to the complainant in proper working condition as can be ascertained from service job-sheets no.WXIN18111300011057 & no.WXIN190214000- 7418. On merits, it is stated that the complainant has alleged mere allegations without any proof. In the absence of any evidence that (i) the Product purchased by the complainant is presently in a defective state, (ii) that the defect is a manufacturing defect and (iii) that the Product was not repaired by the authorized service centre of OP No.4, this complaint is liable to be dismissed for failure to establish a cause of action. It is submitted that the mobile set in question was repaired by the authorized centre of the manufacturer i.e. OP No.4 free of cost as per standard warranty terms and conditions applicable to the product. It is stated that there was no manufacturing defects in the mobile set and the complainant has failed to produce any evidence in support of his contentions. It is submitted that the complainant is not entitled to any other relief, which is not permissible under the warranty terms. It is submitted that as per warranty terms, only the defective part is repaired or replaced instead of replacement of the entire product. Under para-wise reply, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.4 and as such, the complaint of the complainant is liable to be dismissed.

3.The learned counsel for the complainant has tendered the affidavit as Annexure C/A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.3 has tendered the affidavit Annexure R3/A along with documents Annexure R-3/1 and closed the evidence. The ld. counsel for the OP No.4 has tendered the affidavit Annexure R-4/A alongwith documents Annexure R4/1 to R-4/5 and closed the evidence.

4.We have heard learned counsels for the complainant, OP No.3  & OP No.4 and gone through the record available on the file, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the mobile set in question as sold to the complainant vide invoice no.2657 dated 04.09.2018 (Annexure C-1) by the OPs had manufacturing defect in it, which the OPs had failed to rectify despite their best efforts and thus, the complaint is liable to be accepted by grating the relief as claimed for in the complaint.

6.On the other hand, the OP No.1, who had sold the mobile in question to the complainant did not contest the complaint; hence, the same was proceeded ex-parte vide order dated 18.06.2019.

7.The OP No.2, which is authorized service centre, has also preferred not to contest the present complaint and accordingly, it was also ordered to be proceeded ex-parte vide order dated 18.06.2019.

8.The learned counsel on behalf of the OP No.3 reiterating the averments as made in the written statement has contended that there was no deficiency or negligence on the part of OP No.3 as its role was only of a financer and thus, the complaint is liable to be dismissed qua OP No.3.

9.The learned counsel on behalf of the OP No.4 reiterating the averments as made in the written statement as also in the affidavit (Annexure R-4/A & R-4/B) refuted the allegations as alleged by the complainant qua occurrence of manufacturing defect in the mobile set and contended that the mobile set was repaired on every occasion by the OP’s technical person as and when it was requested by the complainant. It is contended that the OP’s grievances were duly attended on each and every visit of the complainant and thus, there was no lapse or deficiency on the part of the OP No.4. Reliance has been placed on the following case laws:-

i.        Kumari Nararata Singh Vs. Manager, Indus; III(2012) CPJ 710 (NC).

ii.       Sushila Automobiles Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & ors. III(2010)   CPJ 130(NC).

iii.       Classic automobiles Vs. Lila Nand Mishra  & Ors. I (2010) CPJ 235(NC).

iv.      Mahindra & Mahindra Ltd. Vs. B.C.Thakurdesai & Anr. II(1993) CJP 225(NC).

 V.       Royal Enfield Motors Ltd. Vs. Kulwant Singh Chauhan, (2011) 4 CPR 208    

           (SCDRC, Uttarkhand).

                        

10.Admittedly, the complainant had approached the OP no.2, who is an authorized service centre of OP No.4 i.e. manufacturer of the mobile set in question, on 30.11.2018, 14.02.2019 & 22.3.2019 vide job-sheet(Annexure C-2, C-3 & C-4) respectively. As per job-sheet dated 30.11.2018(Annexure C-2), the mobile set was found having the defects as speaker no sound in non-calling state/SW problem. As per job-sheet dated 14.02.2019(Annexure C-3), the mobile set was reported to have the defect as receiver low sound in non-calling state/ slow charging hang issue speaker low sound & SW problem. Further, the job-sheet dated 22.03.2019(Annexure C-4) shows the defects as “slow charging”. A bare perusal of above mentioned job-sheets makes it evident that the OP No.2 i.e. authorized service centre of OP no.4 had failed to rectify the defect of the mobile set.

11.Pertinently, on every visit, a new and different defect was reported in the mobile set in question. The version of the complainant qua manufacturing defects in the mobile set is further substantiated and corroborated by the statements of technical person, namely, Hamid s/o Mushart Ali, who was called to inspect the mobile set in question, at the request of OP No.4. The said technical person attended the Commission on 29.09.2022 and after inspection of the mobile set, by making a separate statement, stated that the defects qua the automatic working i.e. automatic on/off of the mobile set was not liable to be ascertained.

12.As per observations made in the aforementioned job-sheets as also the statement made by the said technical person, namely, Hamid, on behalf of OP No.2, the allegations of the complainant qua manufacturing defects in the mobile set stands well proved beyond any doubt and thus, the Ops No.2 & 4, jointly and severally, are liable to compensate the complainant for deficiency on their part. The present complaint is dismissed qua OPs No.1 & 3.

13.As a sequel to the above discussion, we partly allow the present complaint with the following directions against OPs No.2 & 4:-

1. The OPs No.2 & 4 are directed to refund the amount of Rs.17,499/-along with interest @9% per annum(simple interest) to the complainant w.e.f. the date of filing of the complaint till its actual realization  subject to return the mobile set to Ops No.2 & 4, who shall get the same collected from the complainant.
2. The OPs No.2 & 4 are also directed to pay a sum of Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him.
3. The OPs No.2 & 4 are further directed to pay an amount of Rs.5,500/- to the complainant on account of litigation charges.

 

14. The OPs No.2 & 4 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.2 & 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:29.09.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President