Punjab

Nawanshahr

CC/48/2018

Jyoti Bala - Complainant(s)

Versus

Gaba Telecom - Opp.Party(s)

Yudhvir Bajaj

29 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.       :    48 of 2018

Date of Institution                             :    06.09.2018

Date of Decision                     :    29.01.2019

Jyoti Bala W/o Sunil Kumar R/o Master Ram Singh, Guru Teg Bahadur Nagar, Nawanshahr, Distt: S.B.S. Nagar

                                                         ….Complainant

Versus

1.       Gaba Telecom, Market Gurdwara Singh Sabha, Chandigarh Road, Nawanshahr, through its Owner/Manager/Partner..

2.       HTC Authorized Service Center, Shop No.3, 4, 1^st Floor, Ansal Plaza, Ferozepur Road, Gurdev Nagar, Ludhiana, Punjab-141001, through its Owner/Manager/Partner.

3.       HTC INDIA PVT.LTD.(Dopod), G-4, BPTP Park Centre,  Sector-30, Near NH-8,Gurgaon-122001, Haryana, India through its Managing Director.

          …Opposite Parties

                             Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH.KULJIT SINGH, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

ARGUED BY:

For complainant                      :         Sh.Rajvir Sharma, Advocate

For OPs                                   :         Ex parte

 

ORDER

PER SH.KULJIT SINGH, PRESIDENT

 

1. Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that the complainant has purchased a HTC Mobile D-728 vide bill dated 10.12.2016 for Rs.15,000/- in cash from OP No.1 for her personal & daily use.  It was assured to complainant by the Op No: 1 that the said mobile belongs to good reputed company and it will work properly and will not create any trouble. In case any trouble be arisen, the Ops will remove the defect or otherwise, they will replace the mobile set. The complainant started to use the said mobile set very carefully as per her requirement of daily use. From very beginning, the said mobile started to create trouble while working and started to give problem of hanging, auto switched off, low battery backup, touch screen problem & its screen used to turn off and it reflects nothing and over heat problem etc. He alleged that the after talking of 05 to 10 minutes, it also turns to lose heat. On 28.03.2017 it switched off automatically. The complainant visited with Authorized Service Center of OP-3 at Jalandhar about its problem of mobile and the officials of respondents after inspecting and checking the mobile said that the aforesaid mobile contains internal manufacturing defect.  She also alleged that for redressal of her grievance, earlier complainant preferred consumer complaint No.36/2017 on 20/07/2017, before this Forum and during pendency of said consumer complaint, the Ops compromised the matter & have replaced the said mobile with mobile Model HTC Desire 10 Pro, IMEI No.352752080119399 on 19/09/2017 with fresh warranty of one year.  It has also been assured that the mobile set will work properly and will not create any trouble. In case any trouble be arisen, the Ops will remove the defect or otherwise, they will replace the mobile set. She further alleged that after lapse of sometime, the said mobile started to create problems. Then the complainant, in November 2017, visited with the respondent No: 1 and narrated its entire problem, who after keeping the said mobile set for one day, handed over the said mobile set by asking that it is running “OK”. The officials of Ops assured & promised that it will not create any kind of trouble in future. But thereafter, the aforesaid mobile, on 11.09.2018, again stopped to work properly and again started creating problem of hanging, auto switched off, low battery back-up, touch screen problem, charger not charging the mobile set & its screen used to turn off and it reflects nothing and over heat problem etc and many time, it started to stop working etc. and the complainant again approached to Ops for removal of the defects of the same and requested to keep her mobile in its working position. the complainant approached to OP No.2 on 13.08.2018 and submitted her mobile alongwith accessories. But the OP No.2 has not supplied/issued the Job Sheet of mobile in question nor they repaired the mobile. It is alleged that OP No.2 has sent SMS mentioning Job sheet No.Q180817001 on 17.08.2018.  Thereafter, Ops have closed the said job sheet without removing defect of mobile set or to keep it in working position, as such Ops have miserably failed to solve the problem of complainant. On inquiry, OP No.2 has disclosed that HTC company has conveyed to OP No.2 that the mobile in question is out of warranty and they refused to repair the mobile & failed to pay any heed to solve the problem of complainant. When the complainant informed to Ops that the said mobile is still under warranty and disclosed about the order of this Forum, but the Ops refused to admit the lawful claim of complainant. Despite repeated requests, the Ops with malafide intention to harass the complainant started to postpone the matter under one excuse or other, so the warranty period may be expired with passage of time. The OP No.2 has not disclosed about anything about correction of the said mobile set till date. Till date, the Ops have failed to repair the mobile set or issued any job sheet or to remove the defect of the said mobile set.  It is also alleged that as OPs have disclosed that this mobile is out of warranty, it means the OPs have handed over old/used mobile to complainant during pendency of consumer complaint No.36/2017 and kept this Forum under dark and concealed the real facts about the same and handed over defective and used mobile to complainant instead of handing over new mobile after given statement by Ops in this Forum in aforesaid consumer complaint. In this way, the Ops have also suffered false statement to misguide this Forum.  That in the first week of month of September 2018, the complainant approached to Ops and requested to solve her problem and requested them that if they are unable to solve the problem of complainant, then, they replace the mobile as the aforesaid mobile is still under warranty. But they failed to do so and refused to admit the claim of complainant. The defective mobile set and accessories is still lying with the service centre of OPs.  That the said mobile set contains manufacturing defect, the Ops have handed over it to the complainant unlawfully & committed deficiency in service. The complainant purchased and thereafter replaced the mobile set for her personal use, but the said mobile set never worked properly from very beginning to till the date & it has not been repaired by the Ops, but it never worked properly and the Ops have also miserably failed to remove the internal/manufacturing defect the said mobile set. It is very much clear that the said mobile set is having manufacturing defect. Due to aforesaid reason, the mobile of complainant remained off many days & remained cut off from her friends and relatives many days. So the complainant has never enjoyed her mobile set. Due to this reason, the complainant has suffered from great mental agony.  The OPs refused to admit the lawful and genuine claim of complainant two days ago. 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, OPs have failed to appear and ultimately proceeded against ex parte vide order dated 30.10.2018. 
3. On being called to do so, counsel for the complainant has tendered in evidence affidavit of complainant Ex.CW1/A, alongwith documents i.e. previous complaint Ex.C-1, copy of bill Ex.C-2, copy of Statement of Rajneesh Kumar representative of OP-2 Ex.C-3, copy of warranty Ex.C-4, copy of order dated 13.09.2017 & 09.10.2017 Ex.C-5 and Ex.C-6, mobile box Ex.C-7, screenshot of message as sent by the OPs Ex.C-8 to Ex.C-10, receipt of depositing of mobile set with OPs Ex.C-11.  
4. We have heard the learned counsel for complainant and have also gone through the record carefully.
5. The complainant approached the OPs for repair of this mobile on 13.08.2018 as Ex.C-11 to solve the problem of mobile i.e. hanging, auto switched off, low battery backup, touch screen problem, charger not charging the mobile set & its screen used to turn off and it reflects nothing and over heat problem etc. But Op-2 failed to supply or issue the job sheet or repair the mobile in question.  Thus, virtually statement of complainant suffered through affidavit through Ex.CW1/A is fully believable that she due to defect in the mobile set had approached to Op No.2 for removal of the trouble in the same.  Despite that the trouble in the set is persisting.  Moreover, OPs have failed to appear despite service of notice which means they accept the allegations as alleged by complainant in this complaint and also failed to issue any job sheet to complainant.
6. Therefore, statement of complainant through affidavit fully believable that due to inherent defect in the mobile set, the same is not working.  This complaint has been filed for replacement of the mobile set within warranty period.  No one from external appearance will be able to detect the inherent manufacturing defects warranting replacement of Touch Screen which is pivotal role for the mobile using.  However, the mobile set got defective after few months of its purchase. The pleas of complainant remained un-rebutted and unchallenged as Ops have been proceeded against ex parte.
7. In case titled as Hind Motor (I) Ltd & Anr. Tata Motors Vs Lakhbir Singh & another 1(2014) CPJ 120 (NC), it has been laid that in case inherent defect in vehicle requiring major repairs after short span of eight months, found, then the vehicle should be replaced, due to deficiency in services.  Same is the position in this case.  So by applying the analogy of law laid down in the above said case, this complaint deserves to be allowed.
8. It may be stated that inspite of the fact that the mobile in question was within warranty, but OP No.2 had refused to repair the same free of cost, therefore, it is deficient in providing services to complainant and is liable to compensate her. Since, the OP No. 2 is the authorized Service Centre of OP No. 3, therefore the OP No. 3 being manufacturer is vicariously liable for the act and conduct of the OP No.2 and thus we do not hesitate to conclude that the OP No. 3 is also liable to compensate the complainant alongwith the OP No.2.  In this complaint, the Ops have failed to mentioned any price of mobile in question on warranty which is also deficiency on the part of OPs.  From the perusal of order dated 13.09.2017, it was ordered that “Case taken up today because on 12.09.2017, Punjab Government has declared holiday.  Sh.Rajneesh Kumar Sukhla, authorized Rep. of OP-2 has made statement that he handed over new (sealed box) mobile set bearing model HTC 10 Pro (4GB Ram and 64 GB Rom) to complainant through her counsel Sh.MP Nayyar, Advocate. Further, he shall hand over warranty/guarantee card and fresh bill of the said mobile to complainant on next date of hearing.

On the other hand counsel for complainant has made statement that he received the above said mobile from Rajneesh Kumar Sukhla, Authorized Rep. of OP-2 and he will receive the warranty/guarantee card and bill from him on next date of hearing……..”. On 19.09.2017, only warranty card has been submitted in this Forum.

9. In view of above facts and circumstances, this complaint is ex parte partly allowed with directions to OPs to return amount of mobile in dispute i.e. Rs.15,000/- alongwith interest @ 9% P.A. from the date filing of this complaint till realization. Amount of Rs.8,000/- allowed as compensation on account of mental agony and physical harassment and Rs.3,000/- allowed as litigation expenses in favour of complainant and against OPs. 
10. The entire compliance of aforesaid order be made by OPs within a period of 30 days from the date of certified copy of this order.
11. Copies of the order be sent to the parties, as permissible, under the rules.

Dated:  29.01.2019

 

  

(Kanwaljeet Singh)       (Kuljit Singh)

Member                         President