4. Opposite parties 2 and 3, did not contest the matter and remained exparte.
5. Mr.G.Yuvaraj, authorized representative of opposite party No.1, appeared on behalf of opposite party No.1, and filed the written version contending as follows – At the outset, complaint averments are denied. There is no cause of action to file the complaint. Opposite party is a company of international reputation and provide products of international standards to its customers. The complainant did not approach the Forum with clean hands. Complaint is therefore guilty of “SuggestioFalsi” and “SuppressioVari” The complainant failed to produce mobile handset in question at the time of filing present complaint for due verification by the Forum. The mobile handset is still lying with the complainant. The complainant approached the service centre of opposite party No.1 for the purpose of repair of handset, but opposite party No.1 service centre told him that it is not a genuine product of opposite party No.1, since IMEI No.911448206296450 does not belongs to opposite party and handed over the same to complainant. There is record of IMEIs data in the support system and when the service centre searched the IMEI, then the system show no results. It means that IMEI of the handset in question does not belong to the opposite party. The said handset is a duplicate one and therefore opposite party No.1 is not liable to pay any compensation or replace the mobile. The onus to prove that the mobile is having defect and the same was manufactured by the company, is on the complainant, and he placed reliance on a decision reported in 2010 CPJ 235 (NC) between Classic Automobiles vs. Lila nand Mishra,. He placed reliance on another decision reported in IV (2006) CPJ 257 (NC) between R.Baskar vs. D.N.Udani, wherein the complaint was dismissed for want of any proof of defect. Further, he placed reliance on another decision reported in MANU/CF/0076/2010 between Sushila Automobiles Pvt. Ltd. vs. Dr.Bijendra Narain Prasad and Ors., in support of his contention that complainant had to establish the claim for the total replacement of the new vehicle and the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile / mechanical engineer that the vehicle suffered from inherent manufacturing defect. In view of the citations referred above, it is stated that the complaint is a frivolous one and has no basis to seek relief. It is therefore prayed to dismiss the complaint.
6. Complainant filed chief affidavit as P.W.1 and marked Exs.A1 to A7. The authorized agent of opposite party No.1 Mr. G.Yuvaraj, filed chief affidavit as R.W.1 and no documents are marked on behalf of opposite parties.
7. The point for consideration is whether there is deficiency in service on the part of opposite parties 1 to 3? If so, to what extent the complainant is entitled for the reliefs sought in the complaint?
8. Point:- Ex.A1 is photocopy of invoice dt:05.07.2017, which shows that complainant purchased the mobile from opposite party No.2, vide invoice No.FAAYMM1800000963 dt:05.07.2017. The product details also shown in Ex.A1. Ex.A2 is letter addressed by the complainant to opposite party No.2, dt:18.07.2017 stating that he purchased the mobile IMEI/Sr.No.911448206296450, and on receipt of the same, it is noticed that the same is not working, and the major complaint is cell phone automatically switch off, and he approached the customer care centre M/s.Micromax, Acelmacrofix, Authorized and Exclusive Micromax Care, Bhavani Nagar, K.T.Road, Tirupati, for repair, but the mechanic after due verification informed that there is manufacturing defect in the mobile and advised the complainant to write a letter to opposite party No.1 for replacement of the product. Ex.A3 is email message sent by P.W.1 to opposite party No.1, dt:16.02.2018 and the message is to the effect “mobile phone micro max canvas XP 4G (q413) – not functioning – automatically switch off. Not started function. Replacement of new piece requested”. Ex.A4 is legal notice dt:23.04.2018 issued to opposite parties 1 to 3 calling upon them to replace the product with a new one or to refund the cost of the product Rs.5,939/- together with expenditure of Rs.1052/- within 15 days from the date of receipt of the notice. But there was no response for the notice. Ex.A5 is acknowledgement of opposite party No.3, dt:24.04.2018 for receiving the notice under Ex.A4. Ex.A6 is track consignment statement dt:31.05.2018 of opposite party No.1. Ex.A7 is returned cover with endorsement ‘refused’ by opposite party No.2. It is the submission of the complainant that he placed order for the subject product through Flipkart and that the same was delivered to complainant on 10.07.2017 at Tirupati, with shipping charges of Rs.52/-. The cost of the product is Rs.5,939/-. Thereafter, the complainant noticed that the mobile phone is not working properly and frequently switched off automatically, and that he showed the product to opposite party No.3 for rectification of the defect, but the same could not be repaired, and on the advise of opposite party No.3, complainant addressed letter dt:18.07.2017 to opposite parties 1 and 2 for replacement of the product, and further as per Ex.A3 he sent email to opposite party No.1 informing about the defect in the handset, and later issued Ex.A4 legal notice to opposite parties 1 to 3, but there was no response though opposite parties 1 and 3 received the notice under Exs.A5 and A6. The counsel for complainant placed reliance on a decision of State Consumer Disputes Redressal Commission, Punjab, reported in 2016-F.A.No.930/2016 delivered on 03.04.2017 between M/s. Xolo Care through its Director / Regional Manager vs. Tarun Sarma, in order to support his contention that the opposite parties are liable to replace the defective handset and also to pay compensation for causing mental agony to the complainant due to deficiency in service on their part. The facts referred in the said decision are more or less the same as that of this complaint. Opposite party No.1 is the only contesting party in this case, and opposite parties 2 and 3 remained exparte. It is seen from the material placed before us that no reply was given to the notice issued by complainant under Ex.A4 by opposite parties 1 to 3. It is the case of complainant that soon after receipt of the product, he noticed that it is a defective one, as the handset frequently switched off automatically, and thereafter he rushed to opposite party No.3 for rectification of the defect, but on the advise of opposite party No.3, complainant approached opposite party No.1 for replacement of the handset.
9. Opposite party No.1 contended that burden is on the complainant to show that the handset received by him was defective and that he is entitled for replacement of the same. He placed reliance on a decision reported in 2013 SCC online NCDRC 904 between Ram Bhagat vs. New Holland Fiat (India) Pvt. Ltd and Anr., wherein it is held that it is the duty of the District Consumer Forum in case where the expert evidence is required, to appoint an expert to examine such defect in goods. Opposite party No.1 further argued that complainant failed to prove that the mobile phone is defective one and failed to discharge his burden to show that the mobile phone is defective one, and no documentary proof is filed by the complainant in this regard. Opposite party No.1 relied on another decision reported in MANU/CF/0142/2008 between Ishwar Rawat vs. Haryana Urban Development Authority and Ors., and the same view was taken by the Hon’ble Supreme Court in case of Rangammal vs. Kuppuswami and Anr (Civil Appeal No.562 of 2003).
10. But having failed to appear before the Forum and having failed to file objections, it is not open for opposite parties 2 and 3, to contend that it is the burden of the complainant to show that the mobile received by him is a defective one. Complainant from the beginning says that he approached opposite party No.3 for replacement of the mobile, as the same was defective one, and opposite party No.3 advised him to approach opposite party No.1 for replacement of the mobile, since it is a defective one. This evidence of P.W.1 has not been contradicted by opposite party No.3, since he did not appear before the Forum and contested the matter. So, the evidence of P.W.1 has to be believed with regard to manufacturing defect of the mobile received by him. The contention of opposite party No.1 is that they are not liable to replace the defective mobile, and that the handset of the complainant is not a genuine product of opposite party No.1. Further, it is contended that the complainant has to prove that the mobile is having manufacturing defect. As already pointed out, opposite parties 2 and 3 did not contest the matter. Opposite party No.1, being the customer care service, is not liable to replace the mobile, and therefore the contention of opposite party No.1 is accepted in so far as its liability is concerned. It is the opposite party No.2, who sold the mobile to P.W.1 under Ex.A1 invoice. Hence, we hold that opposite party No.2 is liable to replace the defective product with a new piece. Accordingly, this complaint is allowed.
11. In the result, complaint is partly allowed directing the opposite party No.2, to replace the defective mobile with a new piece or in the alternative to pay the cost of the mobile i.e. Rs.5,939/- (Rupees five thousand nine hundred and thirty nine only), by receiving the defective mobile from the complainant, and further directed to pay Rs.5,000/- (Rupees five thousand only) towards compensation to complainant due to deficiency in service on the part of opposite party No.2, and also directed to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint. Time for compliance of the order is eight (8) weeks, failing which the compensation amount of Rs.5,000/- shall attract interest at 9% p.a. from the date of this order, till realization.
Complaint against opposite parties 1 and 3 is dismissed.
Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 24th day of April, 2019.
Sd/- Sd/-
Lady Member President (FAC)
APPENDIX OF EVIDENCE
Witnesses Examined on behalf of Complainant/s.
PW-1: Dinesh Prajapath (Chief Affidavit filed).
Witnesses Examined on behalf of Opposite PartY/S.
RW-1: G. Yuva Raj ( Evidence Affidavit Filed).
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s
