Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 167.
Instituted on : 19.4.2018.
Decided on : 29.11.2019.
Manish Khurana, age 24 years, son of Mohinder Kumar Khurana, resident of 23, Mansarover Colony, Rohtak.
.......................Complainant.
Vs.
- Flipkart 447/8, 1st A Cross, 12th Main, 4th Block, Opposite BSNL Telephone Exchange, Koramangala, Banglore, through its Manager/Director.
- M.I. Service Centre, Narayana Complex, Rohtak, through its Manager.
- Xiomi Technology India Pvt. Ltd. 8th Floor, Tower 1, Umiya Business bay, marathahalli Sarjapur outering Road Banglore, Karnatka 560103 through its MD.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. RENU CHAUDHARY, MEMBER.
MS. TRIPTI PANNU, MEMBER.
Present: Sh. Kamal Arora, Advocate for complainant.
Sh. Kunal Juneja, Advocate for Opposite Party no.1.
Sh. Paramdeep Sheemar, Advocate of Opposite Party no.3.
Opposite party no.2 already exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that the complainant has purchased a M.I. Note 4 mobile, vide IMEI no.865405035023386 from the Opposite party no.1 for a sum of Rs.12,999/-, vide bill dated 5.5.2017. From the very beginning, the said phone started giving problems like battery issue, hanging, calling and software etc. during warranty period. On 3.10.2017, the complainant deposited the said phone to the service centre and opposite party issued a Job card no.WXIN170030001894 to him. The complainant visited to opposite party no.2 regarding his mobile problems but the opposite refused to repair the same on the ground that the mobile was out of warranty as the same was opened by third party, which is not true as the said mobile was never opened/repaired at anywhere else. That the act of opposite parties of selling a defective mobile is illegal and there is deficiency in service on the part of opposite parties. Hence, this complaint and it is prayed that opposite parties may kindly be directed to pay an amount of Rs.12,999/- towards the cost of mobile in question, Rs.25,000/- as compensation and Rs. 11,000/- as litigation expenses to the complainant as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No. 1 in its reply has submitted that the respondent No. 1 only provides an online platform where third party sellers directly sells their products and buyers purchase such products from the respective sellers on the website/app out of their own free will and choice. The answering opposite party does not sell any product at its own neither directly nor through any other third party seller. Hence in the above given submissions, there is no cause of action against the answering opposite party. All the other contents of the complaint were stated to be wrong and denied and opposite party No. 1 prayed for dismissal of complaint with cost qua the opposite party No. 1.
3. Opposite party No. 3 in its reply has submitted that after examining the product for defects, it was ascertained that the product in question had been subjected to unauthorized repair/self repair- Product showed signs of tampering and replacement in an unauthorized manner. Front module was also replaced unauthorizedly and the screw seal of the product was tampered which is specifically inserted for detecting unauthorized repairs. The battery of the product was also damaged. It is also submitted that the authorized service centre of respondent no.3 duly informed the complainant that repair/self-repair is not covered under the warranty terms and conditions applicable to the product. But the complainant has refused to pay the repair costs and the product was duly returned to the complainant without repair. It is further submitted that the complainant has not produced any evidence to prove manufacturing defects in the mobile in question. Mere allegations and unsupported averments cannot be held against the respondent No.3 and the complainant is required to prove manufacturing defects in the product. It is prayed that complaint may kindly be dismissed with costs.
4. Whereas, notice was issued to opposite party No. 2 received back duly served. But he failed to appear before the forum. Hence, opposite party No. 2 was proceeded against exparte vide order dated 30.5.2018 of this Forum.
5. Complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C3 and closed his evidence on dated 30.8.2019. Opposite party No. 3 has tendered affidavit Ex.RW3/A, documents Ex.R3/1 to Ex.R3/6 and closed his evidence on dated 14.10.2019. On the other hand, ld. counsel for the opposite party No. 1 made a statement that the reply already filed on its behalf, be read as affidavit in evidence and has closed his evidence on dated 22.11.2019.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. After going through the file and hearing the parties it is observed that as per bill Ex.C1, the complainant had purchased the mobile set on 5.5.2017 for a sum of Rs.12999/- and as per job sheet Ex.C2 dated 03.10.2017, the mobile in question was having problems like “Battery swollen, low battery back up”. But as per the writing of the opposite party No.3 made on the job sheet Ex.C2, “Battery was damaged, Third party open handset. Front module change from outside, Screen Seal broken. The handset in question was returned to the customer”. On the other hand, complainant has submitted that there was manufacturing defect in the mobile in question, due to which the battery was swollen and therefore broken. The mobile in question was not got repaired from any unauthorized service centre or person. Hence there is deficiency in service on the part of opposite parties.
7. After going through the file and hearing the parties it is observed that the defect in question appeared in the mobile set within warranty period. As per the statement made by opposite party No.3 on dated 13.08.2019, the screen of the mobile was uplifted due to swollen of battery and the complainant had got repaired his mobile set from outside. But opposite parties have not placed on record any document to prove that the mobile in question was got repaired by the complainant from outside/third party. The battery in question was swollen at its own, which is not the fault of the complainant. Moreover, the other damages occurred in the mobile set as written by the respondent no.2 in the inspection sheet can be occurred due to swollen of battery. As such, it is observed that there is manufacturing defect in the mobile in question which was not replaced by the opposite parties during the warranty period. Hence there is deficiency in service on the part of opposite parties and opposite party no.3 being the manufacturer is liable to refund the price of mobile set.
8. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.3 to refund the price of mobile set Rs.12999/-(Rupees twelve thousand nine hundred and ninety nine only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 19.04.2018 till its realization and shall also pay Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.3000/- (Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to hand over the mobile in question to the opposite parties at the time of receiving the alleged amount.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
29.11.2019.
................................................
Nagender Singh Kadian, President
………………………………..
Renu Chaudhary, Member.
…………………………………
Tripti Pannu, Member.
