Order dictated by:
Sh.Anoop Sharma, Presiding Member.
1. Present complaint has been filed by Sh.Manipal Singh under the provisions of the Consumer Protection Act alleging therein that he purchased Mobile phone from K.R. Electronics, Amritsar in the name of his cousin vide Invoice no. 1948 dated 15.5.2015 for Rs.53000/-. The aforesaid Mobile phone was having inherent manufacturing defects from the first day of its purchase and was not giving proper service and was having network loosing and hanging problem with low battery. Complaints to the said effect were made to opposite party No.1 and opposite party No.2, who changed the components in the first month of the purchase. However, the said mobile phone after few months started giving same problem of hanging and network loosing. Complainant made complaint to opposite parties No.1 & 2 , but they could not set right the mobile phone and opposite party No.2 has kept the mobile phone with it since 4.5.2016 and has not returned the same till the filing of the present complaint. Vide instant complaint, the complainant has sought the following reliefs:-
- Opposite Parties be directed to rectify the defect in the mobile phone of the complainant and in case the same is not repairable the same be replaced with the same make or equivalent make or model or in the alternative to refund Rs. 53000/- alongwith interest @ 12% p.a. thereon from the date of payment till realization ;
- Opposite Parties be also directed to pay compensation to the complainant to the tune of Rs.25000/- on account of mental tension, harassment, agony suffered by him.
- Opposite Parties be directed to pay adequate litigation expenses.
Hence, this complaint.
2. Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing separate written statements.
3. Opposite party No.1 in its written version has taken certain preliminary objections that the complainant has no locus standi to file the present complaint ; that the present complaint is not maintainable against the answering opposite party No.1 ; that every customer get one year limited warranty period subject to terms and conditions contained in the warranty card and that the warranty on the mobile set is not absolute but limited to terms and conditions. Brief extract of warranty is as “this limited warranty period does not cover normal wear and tear including without limitation, wear and tear of camera lenses, batteries and display, transport cost, defects caused by rough handling by bending compressing or dropping, water locked etc. or also defects or damage caused by misusage of the products including the use, contrary to the instruction provided by the company or other acts beyond control of company or service centre.” On merits, it was submitted that the averment of the complainant that opposite party did not offer a free service is true as the said iphone in question was defective due to internal damage of IC Chip damaged which could possibly occur only if the complainant has caused any external pressure for the same. The complainant has not provided any evidence to support his claims of the iphone being defective. While denying and controverting other allegations, dismissal of complaint was prayed.
4. On the other hand opposite party No.2 in its written version has submitted that in the present case the service report issued by opposite party No.2 specifically reveals that there is damage in the present iphone and it was found during test that IC chip near camera is damaged due to the complainant’s own fault and not a fault that can be attributed to opposite party No.2 or the device supplied by opposite party No.2. It was further submitted that liability of a manufacturer arises only when there is inherent defect in the product and it is settled position of law that manufacturer cannot be made liable and until it is proved that there was any manufacturing defect . While denying and controverting other allegations, dismissal of complaint was prayed.
5. In his bid to prove the case Sh. Deepinder Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of job sheet Ex.C-2, copy of invoice Ex.C-3 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, opposite party No.1 tendered into evidence copy of the snapshot Ex.OP1/1 and closed the evidence on behalf of opposite party No.1.
7. However, opposite party No.2 tendered into evidence affidavit of Sh. Privesh Povanna Ex.OP2/A, copy of the board resolution Ex.OP2/1, copy of terms and conditions of warranty Ex.OP2/2, copy of service report Ex.OP2/3, copy of the photographs of phone Ex.OP2/4 and Ex.OP2/5 and closed the evidence on behalf of opposite party No.2.
8. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
9. Ld.counsel for the complainant has reiterated the facts as detailed in the complaint and argued that he had purchased one Mobile Set from K.R. Electronics, Amritsar in the name of his cousin being manufactured by opposite party No.2 and opposite party No.1 being the service/warranty provider vide invoice No. 1948 dated 15.5.2015 for Rs. 53000/-. The aforesaid Mobile Set was having inherent manufacturing defects from the very first day of its purchase as it was not giving the proper service and was having the network loosing and hanging problem. In this regard complainant made complaint to opposite party No.1 and opposite party No.2 changed the component . However the said mobile phone after few months started giving the same problem of hanging and network loosing. Complainant again made complaint to opposite parties No.1 & 2 but despite trying their best they could not rectify the problem in the mobile hand set and opposite party No.2 has kept the said mobile phone with it since 4.5.2016. As per the company policy, the Opposite Party No.2 also did not provide any alternative set for the use of the complainant. Complainant has been approaching the Opposite Party No.2 for the rectification of defects in the mobile hand set, but Opposite Party No.2 did not pay any heed to the requests of the complainant. The aforesaid act of the Opposite Parties of not listening the genuine and legitimate request s of the complainant is quite illegal, unwarranted and unsustainable.
10. On the other hand, ld.counsel for Opposite Parties No.1 and 2 have specifically contended that the iphone in question was defective due to internal damage of IC Chip damaged which could only occur if the complainant has caused any external pressure for the same. It has further been contended that the warranty is limited to terms and conditions and this limited warranty does not cover normal wear and tear including without limitation, wear and tear of camera lenses, batteries and display, transport cost, defects caused by rough handling, by bending compressing, or dropping, water locked etc or also defects or damage caused by misusage of the products . It was admitted that the complainant was denied for repair of iphone as the said iphone was defective for reasons contributable to complainant and there is no deficiency on service on the part of the opposite parties
11. Admittedly, the complainant had purchased one Mobile phone from K.R. Electronics, Amritsar in the name of his cousin vide Bill/Invoice no. 1948 dated 15.5.2015 for Rs.53000/-, copy of bill accounts for Ex.C3. It was not the denial of the Opposite Parties No.1 and 2 that the Mobile Set in question having one year warranty from the date of its purchase . But the only contention of the ld.counsel for Opposite Parties No.1 and 2 is that the Mobile Set in dispute was defective due to internal damage of IC Chip damaged which could possibly occur only if the complainant has caused any external pressure for the same. The job sheet was duly issued by Opposite Party No.2 which has already been placed on record by the complainant. But, however, the opposite parties have not proved that the iphone was defective due to internal damage of IC Chip as the opposite parties have not produced any evidence in this regard. So the defect in the iphone was due to IC chip which was covered under the warranty period.
12. Undisputedly, the Mobile Set in dispute became defective within warranty period as the Mobile Set in dispute was purchased by the complainant from K.R. Electronics vide Bill/Invoice no. 1948 dated 15.5.2015 for Rs.53000/-, copy of bill accounts for Ex.C3 and for the first time, the Mobile Set in dispute was submitted with Opposite Party No.3 on 10.9.2016 after 4 months of purchase for its repair. The aforesaid Mobile Set was having inherent manufacturing defects from the very first day of its purchase and was not giving the proper service and was having network loosing and hanging problem with low battery. Complainant made complaint to the said effect to opposite party No.1 and opposite party No.2, who changed the components in the first month of the purchase. But, however the said mobile phone again started giving same problem of hanging and network loosing.The complainant made complaint on 4.5.2016 to Opposite Party No.2 and kept the Mobile Set in dispute for repair by giving time for few days, but however, the mobile set in question has not been repaired by the opposite party No.2 and till then the mobile set has been in the custody of the opposite party No.2 and the same has not been returned to the complainant by making necessary repairs. Opposite Party No.2 authorised service centre did not bother either the repair the Mobile Set in dispute or to refund the price value of the Mobile Set in dispute, because the Mobile Set in dispute was at that time was within warranty period. So, in such a situation, we direct Opposite Parties No.1 and 2 to replace the iphone in question with the same make and model or in the alternative in case of non availability of said make and model of iphone to refund the price value of the Mobile Set in dispute of Rs.53,000/- to the complainant, within 30 days from the date of receipt of copy of this order. Opposite parties are also directed to pay compensation to the tune of Rs. 2000/- to the complainant and litigation expenses are assessed at Rs. 1000/- . Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 21.02.2017.
