Punjab

Ludhiana

CC/16/80

Gurpreet Singh - Complainant(s)

Versus

Deekay Beauty Centre - Opp.Party(s)

Ashish Grover Adv.

15 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 80 of 03.02.2016

   Date of Decision            :   15.02.2017

 

Gurpeet Singh son of Swaran Singh son of Sher Singh, resident of village Badhni Kalan, Tehsil Nihal Singh Wala, District Moga.

….. Complainant

Versus

 

1.Deekay Beauty Centre, Ghumar Mandi Chowk, Ludhiana through its authorized signatory.

2.Er.Vikas Shahi & Er.Vimal Shahi, Shahi Communication Center, Shop No.5, 583-L, 4X Revolving Restaurant.

3.Xolo (Regd.), 118, Laxmi Nagar, Opposite Pillar No.32, New Delhi-110092 through its authorized.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                      :         In person

For OP1                         :         Sh.Maninder Singh Kalsi, Advocate

For OP2                         :         Ex-parte

For OP3                         :         Ms.Shalini Joshi, Advocate.

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant Sh.Gurpreet Singh, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against OPs, by alleging that he purchased mobile of Xolo company through OP1 and OP2. That mobile of make Xolo-Q 1000 bearing IMEI No.911351002263072 was purchased through bill No.8861 dated 26.11.2014 for sum of Rs.9500/- from OP1. At the time of purchase, both Op1 and OP2 gave warranty of one year. After a month of purchase, the mobile phone of the complainant started creating problems. Complainant visited the office of OP1 for disclosing about the problems and they claimed that they will send the same to the service centre i.e. OP2. Few days thereafter, the complainant visited the office of OP1 and OP1 handed over the mobile phone to the complainant. However, the said mobile phone on next day stopped working, due to which, the complainant again visited OP1 with the said mobile phone. Op1 called upon the complainant to visit after 2 days and complainant did the same thing. OP1 disclosed the complainant that his mobile has gone dead and he returned the same instead of repairing it or solving the problem. Thereafter, despite repeated visits to the office of OP1, they procrastinated the matter and as such, complainant claims to have suffered mental, physical and economic loss as well as business loss of amount of Rs.50,000/- in all. By pleading deficiency in service on the part of Ops and after serving legal notices through counsel, this complaint filed with prayer for issuing directions to Ops to replace the mobile phone with new one. Even compensation for mental tension, agony and harassment of Rs.25,000/-, but compensation of Rs.25,000/- on account of loss and Rs.11,000/- as litigation expenses sought.

2.                In written statement filed by OP1, it is claimed that as loss occurred due to illegal acts of complainant himself and as such, complaint is not maintainable. Besides, on bill itself, it is endorsed that warranty to be provided by the service centre and as such, complaint against OP1 is not maintainable. Admittedly, the mobile phone in question was purchased by the complainant from OP1. However, after sale of mobile phone, the service to be provided by OP2 and OP3 only. Each and every other averment of the complaint denied by praying for dismissal of complaint.

3.                OP2 is ex-parte in this case.

4.                OP3 in the written statement filed by it pleaded interalia as if the complaint is not maintainable; complaint filed without technical report; complainant has not approached this Forum with clean hands; complainant has no locus standi or cause of action. Rather, it is claimed that complaint filed out of greed for getting compensation. Admittedly, the complainant approached regarding problem in the unit on 19.1.2015 and then job sheet was prepared. The engineer of the company checked the unit properly and resolved the problem in the ear phone as reported by the complainant. Thereafter, again the complainant visited the service centre of company on 10.4.2015 and after preparing the job sheet, defect of charging problem was removed and then the mobile phone was delivered in Ok condition to the complainant. Thereafter, the complainant never approached the company regarding the unit. OP3 company is a renowned company having number of service centres across the country and complainant or any other customer may approach any of those service centres. Rather, complainant without any cause of action filed the present complaint. Admittedly, the company provides one year warranty on the unit and in case of any problem, repair of the unit done and even replacement of the defective part will be done by the company during the warranty period, but subject to the terms and conditions of the warranty. Complainant has not mentioned the complaint number or the job sheet number in his complaint and even the details of the complaints or of the visits not given in the complaint. It is claimed that Ops still ready to repair the unit as per company policy and as such, there is no deficiency in service on the part of Ops. Complaint is filed without getting opinion qua defect in the working of the unit. Each and every                other averment of the complaint denied.

5.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents EX.C1 to Ex.C4 and then closed the evidence.

6.                On the other hand, counsel for the OP1 tendered in evidence affidavit Ex.RA of Sh.Devinder Paul, authorized signatory of OP1 and then closed the evidence.

7.                Counsel for OP3 tendered in evidence affidavit Ex.RA of Sh.Ankit Agarwal c/o Lava International Ltd along with document Ex.R1 and thereafter, closed the evidence.

8.                          Written arguments not submitted by any of the parties. Oral arguments addressed and were heard. Records gone through minutely. 

9.                 Purchase of the mobile phone in question by the complainant from OP1 proved by retail invoice Ex.C1 dated 26.11.2014 for consideration of Rs.9500/-. On invoice Ex.C1 itself it is mentioned that warranty only to be provided by the service centre and if that be the position, then in view of acceptance of this condition by the complainant at the time of receipt of Ex.C1, OP1 as seller stands excluded from liability of providing the warranty. So, submissions advanced by Sh.Maninder Singh Kalsi, Advocate representing OP1 has force that as warranty to be provided by the service centre and as such, OP1 being the dealer cannot be held liable for any deficiency in service on account of rectification or non rectification of the problem surfacing in the sold unit.

10.              Complainant has placed on record copy of legal notice dated 29.9.2015 Ex.C2 along with postal receipts Ex.C3 and Ex.C4 for showing that he filed this complaint after service of notice through counsel. However, service of notice through counsel by post alone cannot be considered as sufficient for holding that actually there is deficiency in service on the part of Ops. Rather, over all facts and circumstances brought on record to be taken into consideration for finding as to whether OP2 and OP3 as manufacturer or service centre provided deficient services or not?

11.              It is the contention of complainant that defect in the mobile phone developed in one month of purchase, but no documentary evidence in that respect has been produced on record. Even allegations of complaint or of affidavit of complainant are absolutely silent regarding surfacing of such defect on 24.7.2015 or of change of battery against payment got by the service centre. Had really the battery been changed after acceptance of payment by the service centre, then receipt in that respect definitely would have been issued to the complainant and job sheet before that would have been prepared. No job sheet or receipt produced for showing charging of any amount for change of battery and as such, in                                        absence of any allegation in the complaint qua change of battery on 24.7.2015, it has to be held that the complainant failed to prove as if he availed service of change of battery on payment on 24.7.2015.

12.              However, contents of written statement of OP3 along with affidavit Ex.RA of Mr.Ankit Agarwal establishes that complainant approached company on 19.1.2015 and 10.4.2015 for rectification of the defects in the mobile phone. It is the claim of Ops put forth through written statement of OP3 and affidavit Ex.RA of Mr.Ankit Agarwal that those defects or problem in ear phone and of charging were removed and thereafter, mobile phone handed over to the complainant in Ok condition. Even if these defects may have been removed on 19.1.2015 and 10.4.2015, despite that the same defects again persisted in the mobile phone and that is why, complainant got served legal notice Ex.C2 dated 29.9.2015 through counsel by post as revealed by postal receipts Ex.C3 and Ex.C4 and as such, certainly submissions advanced by the complainant has force that owing to defects in the mobile phone, he has to issue the legal notice within the warranty period. Even if report of mechanic/expert has not been got produced, despite that it cannot be held that defects in the mobile phone are not there because only on inspection of the mobile phone by the service centre or manufacturer, it can be found as to what defects now are persistinmg. In view of lodging of complaint through notice Ex.C2 within the warranty period, OP2 and OP3 being the service provider or manufacturer, liable to remove the defects in the mobile phone, provided complainant hands over the mobile phone in question for repair within 10 days from the date of receipt of copy of this order. These defects must be removed by OP2 and OP3 free of costs within 30 days from the date of receipt of copy of this order, provided complainant deposits the mobile phone in question for repair with either OP2 or OP3 within 10 days from the date of receipt of copy of this order. In view of non removal of the defects to the satisfaction of the complainant, certainly the complainant suffered mental tension, agony and harassment and has to bear litigation expenses and as such, he is liable to be compensated for the same. Liability of OP2   and OP3 being manufacturer and service centre, held as joint and several.

13.              Therefore, as a sequel of the above discussion, complaint against OP1 is dismissed, but the same is allowed against OP2 and OP3 by holding that they will hand over the duly repaired mobile phone in question to the complainant free of costs within 30 days from date of receipt of copy of this order, provided complainant deposits the mobile phone in question for repair with OP2 or OP3 within 10 days from the date of receipt of copy of this order. Compensation for mental harassment of Rs.3000/- (Rupees Three thousand only) and litigation expenses of Rs.2000/- (Rupees Two thousand only) more allowed in favour of complainant and against Op2 and OP3. Liability of Op2 and OP3 held as joint and several. Payment of these amounts be made within 30 days from date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli         )                            (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:15.02.2017

Gurpreet Sharma.