Delhi

North East

CC/104/2016

Shri Anup Kumar - Complainant(s)

Versus

Data Wind Innovation Pvt. Ltd. - Opp.Party(s)

07 Feb 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 104/16

 

In the matter of:

	Shri Anup Kumar S/o Shri Jayram R/o:- House no. 408, F2-Block, Sunder Nagri North East Delhi Pin Code-110093	Complainant
	Versus
1.         2.	Gurukul Technology for Mobile F-397, Khajoori Khas, Ground floor Kangra Bank, Opp. Bhajanpura Bus Stand Delhi-110094   DATAWIND INNOVATIONS Pvt. Ltd. 740, Udyog Vihar, Phase V Gurgaon-122016,	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION       :

08.04.2016 07.02.2020 07.02.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant as culled out in the present complaint are that the complainant had purchased a DATAWIND pocket surfer 3G4 mobile bearing IMEI No. 911413100085730 and 911413100085722 manufactured by OP2 through Naaptol, online portal on 28.07.2015 for a sum of Rs. 3,398/- on cash on delivery. The subject mobile had one year facility of internet but it never functioned properly as complainant could not excess internet and was given for repairs to OP1, ASC of OP2 which defect was cured and was the mobile was handed over to the complainant. However the subject mobile gave software problem on 02.06.2016 for which complainant again approached OP1 which issued a jobsheet no. LKASC0L022J088 dated 02.06.2016 but OP demanded Rs. 3000/- for repairing the mobile despite it being under warranty. Therefore, the complainant has filed the present complaint praying for issuance of direction against OPs to refund the cost of mobile i.e. Rs. 3,398/- alongwith compensation of Rs. 25,000/- for mental harassment and Rs. 8,000/- towards litigation.

Complainant has attached copy of invoice and jobcard.

2. Notice was issued to the OPs on 12.07.2016. Notice sent to OP1 was received back with postal remark refused which is deemed service as per Section 28 A(3) of CPA and was proceeded against ex-parte vide order dated 19.09.2016. OP2 entered appearance and filed written statement in which it while admitting the complainant having brought the subject mobile to OP1, its ASC on 02.06.2016,  took the objection that the subject mobile did not suffer from software problem but its LCD and touch was broken by complainant himself and therefore the remark on the jobsheet was Physical Damages which is not covered under warranty as per its policy since the same got forfeited when the complainant broke the mobile himself and therefore he was informed that repair shall only be entertained on payment basis. OP2 submitted that complainant had made a part payment of Rs. 500/- out of Rs. 1,546/- quoted by OP1 for undertaking repairs but declined to pay the remaining sum. The said calculation also finds mentioned on the jobsheet. Therefore OP2 prayed for rejection of the complaint. OP2 has filed copy of warranty card.
3. Rejoinder and evidence by way of affidavit was filed by complainant as summary of grievance against OPs.
4. Evidence by way of affidavit was filed by OP2 in reiteration of the defence taken.
5. Written arguments were filed by both parties.
6. We have heard the oral arguments addressed by the complainant and have perused the documents. During the course of oa complainant submitted that the subject mobile has been lying repaired with OP1 since June 2016 and he was asked to pay Rs. 3000/- for its repairs contrary to initial amount / quotation given to him of Rs. 1500/- by OP1.

As per the jobsheet attached by the complainant, the customer complaint is made as Touch / LCD broken with warranty type: void and physical condition of the handset: physical damages touch broken. There is a hand written estimate of Rs. 1,546/- given for repairs against which complainant has paid advance of Rs. 500/- with balance Rs. 1,046/-. The same is admitted by the complainant as also that they had used the subject mobile for 10 months from July 2015 till May 2016.

7. As per the judgment of Hon’ble National Commission in the case of Dina Nath Yadav Vs Micronas Telecom Nokia Authorized Service Center III (2017) CPJ 61 (NC), Hon’ble National Commission held that after warranty period, any repair in the mobile shall be on chargeable basis and it is immaterial whether repair charges exceed cost of new mobile or not. In the present case, the complainant has made part payment of Rs. 500/- against Rs. 1546/- for repairs to OP1 as has been admitted by OP2 in its written statement but no repairs were undertaken or mobile returned repaired to the complainant. However notwithstanding the same, the complainant has admittedly used the subject handset for 10 months. 
8. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund and thereby set aside order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP.
9. Therefore, relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of mobile phone

We therefore, holding OPs guilty of deficiency of service in having failed to repair the subject mobile despite part payment made against the same and failure to return the same to the complainant, direct both OPs jointly and severally to refund Rs. 1,500/- (towards depreciated cost of mobile) to the complainant and refund Rs. 500/- charged from the complainant towards mobile repair. We further direct the OPs to pay a sum of Rs. 1,000/- to the complainant as compensation inclusive of litigation charges. Let the order be complied within 30 days from the date of receipt of copy of this order. 

10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  07.02.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member