Jammu and Kashmir

Jammu

CC/80/2017

NIKHIL GUPTA - Complainant(s)

Versus

ASUS EXCLUSIVE STORE - Opp.Party(s)

RAKESH SADOTRA

10 Nov 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:               470/DFJ         

 Date of  Institution   :  08-03-2017

 Date of Decision      :    24-10-2018

 

Nikhil  Gupta,

S/O Neeraj Gupta,

R/O Ward No.3 Samba,

A/P H.No.28A Lakker Mandi,

Janipur,Jammu.

                                                                                                                                                Complainant

                V/S

1.ASUS EXCLUSIVE STORE,IT WORLD,

Shop No.1-2-65 to 70/2(Old No.95/B)

Secunderabad-500 003.

2.Flip kart Opposite Jail Road,

   P.C.F.Godown No.512,514 Uasana,Ghaziabad

   Uttar Pradesh,India-201001.

3.F1 Info Solutions   Chahal Complex,

    Opposite DTDC Courier Office,

    Shivaji Chowk,Jammu-180004.

                                                                                                                 Opposite parties

CORAM:-

                  Khalil Choudhary              (Distt.& Sessions Judge) - President

                  Ms.Vijay Angral                                                               Member

                  Mr.Ghulam Sarwar Chouhan                                       Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

      

Sh.Rakesh Sadhotra, Advocate for complainant, present

Mr.Daleep Bhan,Advocate for  OP 2,present.

Nemo for OP3.

 

                                      

                                                    ORDER

 

                           Facts relevant for the disposal of complaint on hand are that complainant is said to have purchased a Asus Mobile Handset model  No.VM62387 for a sale consideration of Rs.8,999/on,08-03-2016 bearing IMEI No.354865078430764 and 354865078430772 (copy of bill is annexed as annexure-A)),however, after nine months of the purchase the handset marred by defects like, problems of over heating,app misbehaving, sudden switch off and restarting while making calls and excessive hanging at length. That on,24-12-2016 the handset suddenly started hanging excessively and ultimately got switched off on its own and despite repeated efforts could not restart, complainant approached authorized service centre,i.e.OP3,with the hope of getting his problem redressed, but OP3 at first expressly refused to repair the handset under warranty for the reason that the aforementioned defects are not manufacturing defects and hence are not covered under warranty, but after heated exchange of words ultimately realized his fault and retained the handset for repair  (copy of acknowledgement of service request is annexed as  Annexure-B)Complainant further submitted that OP3 kept the handset for about three days to carry out repair work, but the handset did not function properly and developed some more problems like touch screen not responding properly and touch button too were not working properly as well as loosely fitted display, complainant again approached OP3 for repair of handset, but OP3 openly refused to repair the handset on the plea that neither they nor OP1 responsible for any of the defects in the handset and also ashamed complainant in front of other customers. Further allegation of complainant is that he repeatedly approached OP3 for rectification of defects, but Ops failed to remove the defects, and same, according to complainant were manufacturing in nature, therefore, in the final analysis, for deficiency in service, complainant prays for refund of cost of handset to the tune of Rs.8, 999/-and in addition, prays for compensation under different heads to the tune of Rs.15,000/.

                 On the other hand,OP1 filed written version and denied entire allegations made in the complaint.

                   At the same time,OP2 filed written version and resisted the complaint on the ground that it is online market place/platform/technology and facilitate sellers and buyers for completion of transactions.

                  Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of Akash Gupta.Complainant has placed on record copy of retail invoice and copy of service call report.

          OP2 adduced evidence by way of duly sworn evidence affidavit of Mr.Satyajeet Bhattacharya,Authorised Signatory of Flipkart Internet Pvt.Ltd.

                  We have perused case file and heard L/Cs for the parties at length.

               To be brief, allegation of complainant is that he purchased  handset manufactured by OP1,but within warranty period, handset was marred by defects,however,despite repeated requests,OPs failed to remove  the alleged defects. On the other hand,Op,1&3 despite service of notice, did not choose to defend themselves before the Forum,therefore,their right was closed.                  

                           In so far as, allegation of complainant regarding defects in the handset are concerned and failure of OP,1&3 to remove alleged defects, same went unchallenged from OP,1&3 side.

                 In support of his allegations, complainant filed his own duly sworn evidence affidavit and affidavit of Akash Gupta, which are verbatim reproduction of contents of complaint,therefore,need no reiteration. Complainant has also placed on record copy of tax invoice and job card.            

               On the other hand, OP,1&3 despite being duly served, failed to take any action to represent their case in this Forum, either to admit the claim of the complainant or to deny it, so there is no reply filed by OP,1&3 in this complaint and there is also no evidence to rebut the case of the complainant. The present case of the complainant is covered by Section 11 (2) (b) (ii)of the Consumer Protection Act,1987, which provides that in a case where the Op1&3 omits or fails to take any action to represent their case within the time given by Forum, in that situation the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-Clause (ii) of the Section 11, of Act of 1987, clearly, provides that when OP,1&3 omits or fails to take any action to represent their case before the Forum, the dispute has still to be decided on the basis of the evidence brought to its notice by the complainant.

                                From perusal of averments contained in the complaint, it is manifestly clear that from the very beginning, handset started giving trouble,whereas,despite repeated requests to Ops the handset could not be

made  workable,therefore,in our opinion once high-end hand set purchased by complainant,obviously,without any rhyme or reason, question of grouse, regarding fault of handset would not have arisen, instead of making use of it. Rather we think Ops should have redressed grievance of complainant, who spent such huge money and banked upon such multinational brand, but it seems that instead of well coming the consumer,Ops have chosen to multiply  suffering, which of course is unwarranted and unexpected from such brand. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by OP 1&3.

                  Therefore, in view of aforesaid discussion, we are of the opinion that the complainant has succeeded in proving deficiency in service on the part of OPs,1&3,as such,OPs 1&3 are directed to refund cost of handset to the tune of Rs.8,999/.-to the complainant, who in turn returned the handset with all accessories to OP 1&3. OPs 1&3 are further directed to pay Rs.5,000/-as compensation for mental agony and harassment and litigation charges of Rs.5000/-to the complainant. The awarded amount be deposited in this Forum within one month from the date of receipt of this order. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Announced                                                 (Khalil Choudhary)                                        

 24-10-2018                                                (Distt.& Sessions Judge)

 Agreed by                                                      President                                                      

                                                                       (District Consumer Fourm)

Ms.Vijay Angral                                                 Jammu.

Member

 

Mr.Ghulam Sarwar Chauhan

Member