BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.296 of 2016

Date of Instt. 14.07.2016

Date of Decision: 01.05.2018

Vinay Khullar aged about 38 years s/o Y. P. Khullar R/o 32, LIF Flats, Shaheed Bhagat Singh Colony, Maqsudan Jalandhar.

..........Complainant

Versus

1. Bunty Mobile World, Authorized Service Centre, Vivo Mobile, Shop No.29, Backside Anand Palace Market, Near Baba Lal Dwawa, Partap Bagh, Jalandhar through its Prop.

2. Vivo Mobiles Company, Plot No.54, Third Floor, Delta Tower, Sector 44, Gurgaon, Haryana, through its Partner/Prop./Director.

3. Kesar Krishanandan Pvt. Ltd Address 4, Green Model Town, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. DK Rana, Adv Counsel for the Complainant.

Sh. Paramjit Rajput, Adv Counsel for OP No.1 and 2.

OP No.3 exparte.

Order

Harvimal Dogra (Member)

1. This complaint is filed by the complainant Vinay Khullar under 'Consumer Protection Act, 1986' against the OPs i.e. Bunty Mobile World and Others, on the allegations of deficiency of service and unfair trade practice with the prayer that the OPs may be directed to change faulty and defective handset and present complaint may kindly be allowed and the OPs may be directed to pay the cost of Rs.50,000/- as damages on account of mental agony, tension and harassment and Rs.50,000/- as compensation on account of deficiency of service rendered by the OPs.

2. The case of the complainant in brief is that the complainant has purchased an android mobile of Vivo Company model No.V3 IMEI No.8609050344388396 after paying the full consideration and amount to OP No.3. That after purchasing the said mobile things goes different in just 10-15 days. The mobile started giving hanging problem and restart problem after purchasing the said mobile and complainant abstained from using the mobile phone from the day when it started giving problem. The complainant could not use his mobile phone due to problem of restarting and hanging and this causes loss to the complainant in his business. That for solving the said issue complainant contacted and approached the OP No.3 from whom the said mobile was purchased, but the OP No.3 refused to solve and entertain to the complainant and told to approach the OP No.1, who is authorized service centre of OP No.2 namely Vivo mobile company and after that complainant visited the office of party No.1 on 27.06.2016 and other day twice for his grievance, but they openly denied to provide any satisfactory service to the complainant, but after making the various request to the OP No.1 by the complainant they kept the handset of the complainant with them and provide the job sheet. That OP No.1 delivered the handset to the complainant on 28.06.2016 with promise that handset is good for use and fault has been repaired but the same day complainant again faced same problem of restart and hanging and battery problem. The complainant again contacted the OP No.1 on same day i.e. 28.06.2016, but the representative of OP No.1 denied to resolve the request of the complainant and openly used bad words and shouted to the complainant that do as you can we are not here to provide you services and neglected the matter willfully and now defective handset lying with the complainant. The complainant also reported the conduct of said service centre to Vivo mobile company through Email and disclosed his grievance of wrong practice done by the OP. Further no proper reply has been given by the Vivo company to resolve the issue. The complainant has suffered the loss in the business and he has also suffered mental agony, tension and harassment and so, he filed the present complaint.

3. After the formal admission of the complaint, notice was issued to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable in the present form and the complaint filed by the complainant is malice in the eyes of law and further alleged that the complainant has not come to this Forum with clean hands and suppressed and misrepresented the true facts from this Forum. This is settled proposition of law that person who does not approach the Forum with clean hands is not entitled for any kind of relief. It is further averred that the complaint filed by the complainant is wrong and false even to the knowledge of the complainant as such, he is not entitled for any kind of relief. That all the allegations/averments made by the complainant in the complaint are totally baseless, vague and has got no credibility in the eyes of law. Hence, the complaint is liable to be discarded by this Forum. That it is pertinent to mention here that the mobile set bearing IMEI No.860905034388396 of Vivo Mobile Company Model V3 Rose Gold was purchased by the complainant on 10.07.2016. The said mobile consists of 3 GB RAM and 32 GB Internal Memory and the expandable memory upto 128 GB. It is pertinent to mention here that the mobile set which was with the complainant has no additional memo card. That the said handset was brought by the complainant with the answering OP No.3 on 27.06.2016 and started proclaiming at the premises of the OP No.3 that he want a new handset by replacing the handset he already had purchased on 10.06.2016. When he was asked that what is problem in the handset that he replied that he does not want to retain the old mobile set. When the executive told the complainant that it is not the policy of the company to change the handset after 17 days from the purchase date,but the problems can be rectified and that too free of cost. Then the complainant told there are some issues with regard to the battery and software. It is further alleged that on 28.06.2016, when the handset was delivered back to the complainant, it was minutely checked by the complainant. After being satisfied with its working condition he received the mobile set by putting his signature on the service job sheet whereby it was specifically written that “I have received my handset in good working condition”. That it is pertinent to mention here that the backup of data of the complainant was taken in the laptop at his asking and the same was given back to him. So no data has been lost of the complainant. On merits, all the averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. Sh. Deepak Kumar appeared on behalf of OP No.2 and filed separate written reply, whereby contested the complaint by taking preliminary objections that the complainant has not approached the Forum with clean hands and complainant has filed the complaint just to extort the money illegal and arbitrary amount from the OP Company. Further OP No.2 stated that keeping in view of answering OP company's goodwill, the answering OP is ready to replace the mobile handset with branded new one with similar price, model and features. So, this Forum may direct the complainant to receive a new mobile handset under the written acknowledgment and dispose of the matter. OP No.3 Sh. Rajan Kesar, Proprietor appeared and filed written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts. The OPs denied any and all allegations and claims that are contained or raised in the complaint. The opposite answering party is only wholesaler/retailer who sells the phone/products to general public and is not the manufacturer. It is further alleged that the complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit and has made this complaint in order to raise a premeditated, false and frivolous prosecution. That the complainant has no true grievance or valid cause of action qua the answering OP. That the compliant is baseless and is flagrant abuse of process of law to harass and blackmail the answering OP. That the complaint is frivolous and vexatious and is liable to be dismissed. On merits, the factum in regard to purchase of the android mobile phone of Vivo Company from the OP No.1 is admitted, but the remaining allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, complainant himself tendered into evidence his own affidavit Ex.CA along with some documents Ex.C1 to Ex.C4 and closed the evidence.

6. Similarly, counsel for OP No.1 and 2 tendered into evidence affidavit Ex.OP1 & 2/A and closed the evidence.

7. When the case was fixed for evidence of the OP No.3, OP No.3 did not come present neither deposited the cost nor tendered any evidence. So, OP No.3 was proceeded against exparte.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. After taking into consideration the entire pleading of all the parties, we find that the OP No.1 to 3 are service provider, manufacturer and dealer of the said product in this case. The mobile in question was purchased by the complainant from OP No.3 on 10.06.2016, after paying the consideration of Rs.16,300/-, the invoice Ex.C-1 is attached. After 10-15 days of the purchase the mobile, the handset started giving problem of hanging and restart problem and the complainant visited in the office of OP No.1 on 27.06.2016 and the mobile was kept with OP No.1 and Job Sheet dated 27.06.2016 was given to the complainant, which is Ex.C-2. On 28.06.2016, the handset was delivered back to the complainant and after being satisfied, the complainant put his signature on the service job sheet, where it is written “ I have received my handset in good working condition”. But the complainant further contended that on the same date i.e. 28.06.2016, the same problem of restart, hanging and battery problem occurred and complainant again contacted the OP No.1, who flatly refused to resolve the request of the complainant. The complainant reported the conduct of service center to Vivo Mobile Company through Email, which is Ex.C-3 and disclosed his grievances. The defected mobile is still with the complainant.

10. On the other hand, the OP No.1 i.e. service centre submits that the mobile phone was purchased by the complainant on 10.07.2016, but the invoice which is attached with the file clearly states that the mobile phone was purchased on 10.06.2016 and not on 10.07.2016. The other contention of the OP No.1 is that the complainant has put his signatures on the service job sheet, whereby it was written “I have received my handset in good working condition and that the complainant insisted that he want new handset.”

11. Now after analyzing this point, we can say that on 28.06.2016, the mobile phone was handed to the complainant and he had signed the job sheet, but later on, same problem sprang up and complainant again contacted OP No.1, but OP No.1 denied to resolve the problem, then complainant reported the matter to the manufacturer i.e. OP No.2 through email dated 28.06.2016, which is Ex.C-3. So, we can conclude that the mobile phone was not rectified by the OP and defect in the mobile phone still persist and OPs have failed to provide proper service to the complainant.

12. Further OP No.2 has stated in the written reply that they are ready to replace the mobile handset with the brand new one with similar price, model and feature. OP No.3 stated that he is dealer and so he is not liable.

13. After going through the allegations alleged in the complaint by the complainant, written statement filed by the OPs, evidence and documents brought on the record, we find force in the contention of the complainant and find deficiency in service on the part of the OPs. Moreover, OPs are deficient in service as they were not ready to listen the complainant second time. Harassed by the act of the service centre the complainant reported the matter to Vivo Mobile Company through email, which shows that the service centre was not interested to provide any service to the complainant and it is a proper case fit for deficiency in service and unfair trade practice.

14. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to replace the mobile set with the brand new one of same model and feature and further directed to pay compensation to the complainant, to the tune of Rs.5000/- and litigation expenses of Rs.2000/-. The entire compliance be made within one month from the date of receipt of the copy of order. Old mobile, if any be returned to the OPs. This complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

01.05.2018 Member President