Punjab

Nawanshahr

CC/15/2018

Hitesh Raj - Complainant(s)

Versus

GAba Telecom - Opp.Party(s)

Anil Kataria

20 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :    15 of 2018

Date of Institution                             :    16.03.2018

Date of Decision:                    :    20.08.2018

Hitesh Raj S/o Raj Kumar R/o H. No. B-4/185, Vaidan Mohalla, Nawanshahr, District SBS Nagar.

                                                                             …Complainant

Versus

1. Gaba Telecom, Market Gurdwara Singh Sabha, Chandigarh Road Nawanshahr, District SBS Nagar.
2. HCL Infosystems Ltd. (Corporate Office) E-4, Sector 11, Noida 201301
3. Ingram Micro India Pvt. Ltd. 5^th Floor, B Block, Godrej, IT Park, LBS Marg Vikhroli (W), Mumbai, through its Managing Director.

          …Opposite Parties

                             Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH.A.P.S. RAJPUT, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

ARGUED BY:

For complainant                      :         Sh.Anil Kataria, Advocate

For OP No.1                                      :         Sh.Pawan Gaba

For OP No.2                                     :         Sh.M.P. Nayyar, Advocate

For OP No.3.                           :         Ex parte.

 

ORDER

PER SH.A.P.S. RAJPUT, PRESIDENT

 

       Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that complainant purchased a HTC Mobile, Model One Ma+(PLE) vide bill dated 07.03.2018 for Rs.24,900/- from OP No.1 alongwith and warranty of one year has also given for his personal and daily use.  It was assured to complainant by OP-1 that the said mobile belongs to good reputed company and it will work properly and further will not create any trouble.  In case any trouble arises, the OPs will remove the defects or otherwise, they will replace the same.  The complainant started to use the said mobile set with very careful manner as per his requirement.  From very beginning i.e. 2^nd/3^rd day, the said mobile started to create trouble in its functioning/working and started to auto switch off and started to hang in between its use and further used to get over heated etc.  The complainant approached to OPs and requested them to replace the mobile because the mobile set is under warranty period.  But the OPs refused to admit the claim and even they denied giving it in writing that why they were not admitting the claim of complainant.  The said mobile set contains manufacturing defect, the OP-1 has sold it to the complainant unlawfully and committed deficiency in service as the OPs have failed to remove the internal/manufacturing problem of the mobile.  It is very much clear that the said mobile is having manufacturing defects.  The OPs are duty bound to replace the same.  OPs are very negligent in providing their services to complainant.  Due to said reason, the complainant’s mobile remained cut off from his friends, relatives and job circle. So, the complainant did not enjoy his mobile phone even after spending a huge amount in buying the same.  Lastly, it is prayed that complaint of complainant be allowed and OPs be summoned and directed to replace the aforesaid mobile set or to refund the price money of mobile alongwith interest and further OPs be directed to pay Rs.50,000/- as damages and Rs.15,000/- as litigation expenses.

2.       Upon notice, OP No.3 has failed to appeared and ultimately proceeded against ex parte.  OP No.1 has filed written version stating therein that complaint is not maintainable.  Complainant has got no locus standi to file the complaint and has got no cause of action against OP-1.  Complainant is not entitled to recovery of anything from OP-1 as OP-1 is having only dealership of OP-2 & 3 and the OP-1 is only selling the articles of OP-2 and 2.  As per rules and regulations of the company act the duty is caste upon OP-2 and 3 to repair or replacement of the goods of the company and dealer is not responsible for the same and according to rules and regulation of the companies act the company of which the goods/articles were found to be defaulted is responsible for repair or replacement of the said goods/articles. On merits, purchase of mobile set is admitted.  It is submitted that as per warranty assurance of company assured the complainant that in case any trouble arises in the goods/articles, then the OP No.2&3 will repair the same or replace the same but OP-1 is not responsible for the same. Rest of averments made in complaint are denied.

3.       OP No.2 has filed separate written statement whereby it is submitted that complainant has not approached to this Forum with clean hands and has concealed the material fact from this Forum.  It is also submitted that complainant has purchased the HTC mobile model one (M8 Eye) from OP-1 on 07.03.2018 and immediately approached this Forum within one week i.e. 13.03.2018 to file the said case without any substantial reason hence the said complaint is liable to be dismissed.  Complainant is not entitled for relief as claim.  Complainant purchased the product under terms of warranty and answering OP never denied to provide services under the warranty.  No cause of action has arisen in favour of complainant.  Complaint is bad for non-joinder of parties as the answering OP is authorized service centre provider of HTC Mobile unfortunately, the manufacturer HTC has not been made the party so complainant be directed to implead HTC as necessary party in this complaint.  The answering OP only provides service as per warranty terms of the manufacturer.  Complainant has neither had any direct correspondence with answering OP nor has paid any consideration qua the mobile in question, further there is no privity of contract between the answering and the complainant.  Therefore, instant OP has unnecessarily impleaded to the present complaint.  Complainant is not consumer of answering OP.  Complainant has never submitted his mobile handset in question with the answering OP. The answering OP has never given any kind of assurance to complainant.  Complainant has file the present complaint with malafide intention to harass the answering OP.  Despite repeated request, the complainant never visited with service centre of answering OP and answering OP has also sent text message dated 24.04.2018 and requested the complainant to submit its mobile set with answering OP at its service center at Amritsar but complainant ignored and refused to submit the handset for repair.  Complainant cannot take benefits of its own wrongs.  The warranty of handset is given by manufacturer and he is liable for after sale service as assured by him. Complainant’s allegations of major defect in handset without adducing any documentary evidence whatsoever is false and baseless.  Complainant has failed to adduce any expert report and or documentary evidence to support his allegations of defect in the handset.  Complainant has not disclosed as to how the handset became defective and what were the defect(s) in the handset. The answering OP is ready and willing to redress the grievances of complainant and to repair as per terms of mentioned in warranty card and its terms as per rules of HTC mobile company, hence question of replacement of handset/refund of sale price did not arise at all.  On merits, answering OP has reproduced the all submissions as mentioned in preliminary objections and lastly prayers has been made for dismissal of complaint with costs.    

4.       On being called to do so, the complainant has tendered in evidence his affidavit Ex.CW1/A, copy of bill dated 07.03.2018 Ex.C-1, copy of Adhaar card Ex.C-2 and closed the evidence. Sh.Pawan Gaba for OP-1 has tendered into evidence his affidavit Ex.OPA and close the evidence.  Similarly, learned counsel for OP No.2 has tendered affidavit of Prabhakar Tiwari Ex.OP2/A alongwith power of attorney Ex.OP2/1, copy of BTA containing clause 13 Ex.OP2/2, copy of screenshot of message dated 24.04.2018 Ex.OP2/3 and closed the evidence.

5.       We have heard the learned counsel for complainant and OP No.1&2 and have also gone through the record carefully.

6.    Learned counsel for both the parties argued similar to their respective pleadings. So no need to reproduce for want of repetition. As per Ex.C-1, the complainant purchased the mobile in question on 06.03.2018.  He had filed this complaint on 16.03.2018.  On the other hand Ex.OP2/3 described that “OPs are not denying for service of mobile in question. Your haven’t yet visited in service centre, you are requested once to visit to service center so that we have give you proper service and solution for your problem in handset”.  Neither any expert has examine the mobile in question nor complainant has produced any documentary evidence regarding manufacturing defect in the mobile in question.

7.    Resultantly, this complaint is disposed of with directions to OP No.1&2 to replace the defective part of the mobile in question free of cost within 30 days from the date of receipt of copy of this order. Further, OP No.1&2 are directed to pay Rs.1,000/- to complainant as compensation.

8.       Copies of the order be sent to the parties, as permissible, under the rules.

Dated:  20.08.2018

 

  

(Kanwaljeet Singh)       (A.P.S. Rajput)

Member                         President