Delhi

North East

CC/161/2018

Rakesh kr. Gupta - Complainant(s)

Versus

Digi Life Distributions - Opp.Party(s)

16 Oct 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 161/18

 

In the matter of:

 

	ShriRakesh Kumar Gupta S/o ShriRaghubar Ram Gupta R/o:- House no. B-1/153 Street no. 10, Harsh Vihar MandoliSaboli, North East Delhi-110093	Complainant
	Versus
1                           2           3	Digi Life Distribution & Marketing Service Ltd. C/O Innovative Tradelink Services Pvt. Khasra no. 78/180, 181 Ground Floor Village Bakoli City, Near Som Bazar Road, Delhi-110036   Also at:- Digi Life Distribution & Marketing Service Ltd. Regd. Office 806, Sidhartha, 96 Nehru Place New Delhi-110019   Nokia Service Center Star Communication WA-118, First Floor, School Block Shakarpur, Mother Dairy Road New Delhi-110092   Nokia Regional Office Kailash Building, Flat no 1204, 12th Floor, Kasturba Gandhi Marg, New Delhi-110001	Opposite Parties

 

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

03.08.2018 16.10.2020 16.10.2020

 

Mr. Arun Kumar Arya, President(Addl. Charge)

Ms. Sonica Mehrotra, Member

 

ORDER

Ms. Sonica Mehrotra, Member

 

1. Facts in brief of the present complaint are that the complainant had booked a Nokia 7 Plus Black/Copper 64GB Dual SIM mobile phone online on the website of Nokia on 22.04.2018 vide order no. 4723 for a sum of Rs. 25,999/- inclusive of GST and made online payment for the same through PayU app and the subject mobile was delivered to him through OP1 seller on 30.04.2018 vide invoice no. 7098018064. However, on 02.05.2018 when the complainanttried to use the subject mobile by inserting SIM in its second SIM slot, it was not working and no signal or network connectivity could be seen in the subject mobile which shocked the complainant since it was a brand new phone and therefore complainant called up the customer care of OP3 (Nokia) and on its advice, visited OP2, Authorized Service Center (ASC) of OP3 the next day and narrated the technical issue faced by him in the subject mobile phone to the engineers of OP2 and asked them to replace the subject mobile phone but same was declined by OP2 on advice to the complainant to contact the customer care of OP3. After many efforts made by the complainant by way of calls, visits and emails to OP2, an employee of OP1 came to the complainant’s residence on 08.05.2018 and collected the defective mobile phone with assurance to the complainant of replacement with a brand new phone within a week but the replacement mobile phone was delivered after 10 days. However, on delivery of the said replaced mobile phone, when the complainant tried to operate the same he noticed that its display was blinking and not working properly and therefore complainant immediately contacted the helpline of OP3 which suggested him to visit OP2 again but when the complainant visited OP2 on 11.07.2018, the technician asked the complainant to pay for repairs of the screen of the mobile phone and refused to repair the same free of cost despite being same under warranty. Therefore, the complainant was constrained to file the present complaint praying for issuance of direction to the OPs to refund the purchase price of the subject mobile i.eRs. 25,999/- alongwith compensation of Rs. 10,000/- for mental pain and agony to Rs. 11,000/- towards cost of litigation.
2. Complainant has attached copy of email dated 22.04.2018 from PayU website to the complainant acknowledging payment made online to Nokia to the tune of Rs. 25,999/- and copy of email dated 22.04.2018 from Nokia to the complainant confirming purchase / booking of the subject mobile phone of payment of Rs. 25,999/- made by the complainant, copy of email dated 29.04.2018 by Nokia to complainant informing about progress of dispatch, copy of invoice no. 7098018064 issued by OP1 for subject mobile phone, copy of emails dated 03.08.2018 exchanged between complainant and OP3 regarding in the subject mobile phone SIM tray and OP3 confirming clearance of validation check and informing complainant of being eligible of replacement of the subject mobile phone, copy of  email dated 17.05.2018 by OP3 to the complainant informing about shipment of replacement handset, copy of invoice no. 7098021293 issued by OP1 in favour of complainant towards replacement mobile phone and copy of emails dated 06.07.2018 and 11.07.2018 by OP3 to complainant informing closer of his case. The emails have been accompanied by certificate u/s 65B of Indian Evidence Act as mandatory requirement for admissibility of electronic evidence.
3. Notice was issued to the OPs on 11.09.2018. OP1 entered appearance and filed its written statement vide which it took the preliminary objection that it had always provided best services to the complainant and had duly replaced the earlier mobile phone with brand new one after which replacement the complainant neither approached OP2 or customer care of OP3 regarding any alleged issue relating to the replaced handset and directly filed the present complaint instead despite the subject handset having been replaced by OP1 as per instruction and policy of OP3 to the utmost satisfaction of the complainant. On merits, OP1 resisted the complaint on grounds that the same is false and concocted and that the service center never denied the request of the complainant to attend his grievance pertaining tothe subject mobile phone specifically the same was under warranty which is why the previously delivered handset was replacedby OP1 within the stipulated time. OP1 urged that the complainant has not been able to prove his contention of a defective replacementhandset by way of any visit to the service center or any job sheet issue by its. Lastly, OP1 submitted that after replacement of the subject mobile phone, if the complainant was actually facing problems/ issues with the said handset, he could have visited OP2 for repair of the same free of cost under warranty term but he chose not to do so and his allegation of having visited the service center is also negated since he has failed to prove his visit by way of any token number and / or jobsheet which is issued and under which the customer is assisted by the service center official. Therefore, OP1 prayed for dismissal of the present complaint.
4. OP2 & OP3 enteredappearance eon 08.10.2018 through its AR and was handed over set of paper book of the present complaint for filing written statement. However, both OP2 & OP3 failed to appear thereafter nor did they file the written statement and therefore their defence was struck off after expiry of mandatory period of 45 days as stipulated under the act vide order dated 26.11.2018.
5. Rejoinder and evidence by way of affidavit was filed by the complainant vide which he submitted that OP1 had sold a defective mobile phone to him which had to be replaced by another mobile phone which also turned out to be defectivein terms of display problem but refused to replace or repair the same despite it being under warranty and OP1 deliberately sent emails dated 06.07.2018, 11.07.2018, 26.07.2018 to the complainant showing closure of his case whereas OP1 had not even entertained the grievance of the complainant. The complainant exhibited the documents relied upon as Ex CW1/1 to CW1/6.
6. None appeared on behalf of OP2 & OP3 despite several opportunity granted and thereforeproceeded against ex-parte vide order dated 31.05.2019 and 02.12.2019 respectively.
7. Evidence by way of affidavit was filed by OP1 sworn by Its Deputy Manager reiterating defence taken in written statement.
8. Written arguments were filed by complainant as well as OP1 in reassertion of their respective / grievance defence.
9. We have heard the arguments addressed by both parties i.e. complainant and OP1 through video conferencing and have bestowed our anxious consideration to the documentary evidence placed on record. It is not disputed that the earlier sold mobile phone on 22.04.2018 was defective and therefore picked up by OPs on in the first week of May and a replacement brand new phone of the same specification was given to the complainant thereafter and there are emails correspondencesexchanged between parties specifically on 03.05.2018 wherein the complainant has appraised of the defective SIM slot with picture of the subject mobile phone as attachment. However, post replacement of the subject handset in May 2018 later on, there is no correspondence or documentary evidence placed on record by the complainant by way of any jobsheets or emails pertaining to the defect in replacement handset or in support of his contention of having visited OP2, ASC of Nokia for repairs or any specific defect pointed in the replacement handset. In fact the emails dated 06.07.2018 and 11.07.2018 by OP3 to the complainant only mentions closer of case and no response thereto has been placed on record by the complainant. In our consider opinion therefore complainant has been unable to substantiate or corroborate his grievance by way of any cogent proof.it is settled law that the burden of proof to prove manufacturing defect lies on the person alleging it but in the present case the complainant has not led any evidence by way of any expert opinion or seeking examination of the subject mobile phone in a government approved lab and has failed to comply with the mandatory condition provided u/s 13(1)(c) of the Consumer Protection Act for establishing defect.In our view, even on merits, the complainant has failed to prove his own averments. The Hon'bleNational Commission in Pushpa BhutaniVs HUDA, Hissar (2006) 3 CPR 239 held that a complaint cannot be allowed if complainant is unable to prove his averments and also held in Shahenn Khan Vs Oriental Insurance Co. Ltd. (2006) 3 CPR 15 (NC) that best evidence should not be withheld from Forum while dealing with a claim of deficiency in service.
10.  We therefore do not find any merits in the present complaint and following the principle laid down by Hon'ble National Commission in PushpaBhutani (supra) and Shahenn Khan (supra), dismiss the present complaint as the complainant has been unable to prove his own averments and has withheld his best evidence from the Forumwhich could or may have supported his allegations against the OPs.
11.  Let a copy of this order be sent to each party free of cost as per Regulation 21 (1) of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on 16.10.2020

 

(ArunKumar Arya) President(Addl. Charge)

(Sonica Mehrotra) Member