Delhi

North East

CC/259/2015

Sh. Vikas Panchal - Complainant(s)

Versus

Gadgets World - Opp.Party(s)

18 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 259/15

 

In the matter of:

	Sh.  Vikas Panchal S/o Vinod Panchal R/o- A53/1 Gali no. 1 Chanderlok, Shahdara Delhi-110093	Complainant
	Versus
1            2         3	Gadgets World G-1, Chamber-2 Neelkanth Building Saini Enclave Delhi-110092   TVS Electronics Ltd. 38-A, Bunglow Road Kamla Nagar, New Delhi-110007   HTC Customer Service At:- TVS Electronics Ltd South Phase-7A, 2nd Floor, Industrial Estate Guindy, Chennai-600032	Opposite Parties

 

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

25.07.2015 18.04.2019 18.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. The facts leading the present complaint as set out by the complainant are that he had purchased an HTC ONE E9 + Gold Sepia Dual SIM mobile phone bearing IMEI No. 357709062904235 / 357709062974238 manufactured by OP3 from OP1 retailer /seller on 03.07.2015 for a sum of Rs. 36,500/- inclusive of VAT vide Retail Invoice Book no. 42 / Serial no. 2083. However, the subject mobile started giving problems of excessive heating, auto switch off, frequent hanging and dipping battery within 10 days of purchase for which the complainant visited OP2 service centre where he was asked to leave the subject mobile for a day for repairs and was issued an UTC repair report / job card no. Q3S15071300157. On 14.07.2015, the complainant was issued Dead On Arrival (DoA) certificate by OP2 with regard to the subject mobile and was asked to visit OP1 with the subject mobile with accessories alongwith the said certificate and on submission of the same he would be given a new replacement mobile against the defective one. When the complainant visited the OP1 on 15.07.2015, he was asked to come a few days later on pretext of non availability of staff. However, OP1 kept postponing the exchange / replacement by weeks and months and eventually told the complainant to deposit the subject mobile with accessories, original bill, original DoA certificate, original job sheet but refused to give any receiving thereof. The complainant took up the said issue with the Customer Care of OP3 and also lodged an online complaint on 20.07.2015 about such malpractices but no action was taken and seeing no resolution of his problem by way of replacement of his defective mobile, the complainant was compelled to file the present complaint before this Forum praying for issuance of directions against the OPs to refund the cost of the mobile i.e. Rs. 36,500/- alongwith compensation of Rs. 50,000/- towards mental harassment and Rs. 20,000/- towards litigation expenses.
2. Complainant has attached copy of purchase invoice dated 03.07.2015 copy of job sheet dated 14.07.2015 and copy of DoA certificate dated 15.07.2015
3. Notice was issued to the OPs on 30.07.2015. OP3 vide postal correspondence dated 15.09.2015 to the Forum requested for the copy of the complaint to be sent to its registered office at Chennai. OP2 was served on 19.10.2015 however did not appear. OP3, appeared on 05.10.2015 before this Forum and vide written representation / acknowledgement, received the handset in question with accessories and other requisite documents from the complainant with an undertaking that “the new handset will be given to Mr. Vikas Panchal within 45 days from the above mentioned date i.e. 5^th October 2015 of the same make and model” duly signed by the proprietor of OP1 on its letter head. However, none of the OPs appeared thereafter nor filed reply and was therefore proceeded against ex-parte vide order dated 08.12.2015. Complainant filed ex-parte evidence by way of affidavit and written argument on 29.01.2016 and 15.01.2019 respectively reiterating his grievance against the OPs and prayed for relief claimed against them for deficiency of service on part of OPs.
4. We have heard the arguments addressed by the complainant and perused the documents placed on record. The subject mobile in question was taken by OP1 from the complainant in October 2015 with an undertaking to replace the same around 3^rd week of November (45 days) but it failed to do so and even appear before this Forum which speaks volume of its brazenness and willful misconduct. Keeping in view, the facts of the complaint having gone un-rebutted and allegations therein therefore established against the OPs, we are of the considered opinion that OPs are guilty of deficiency of service in having sold a defective mobile to the complainant which did not last even 10 days and was declared DoA barely within two weeks of its purchase and failure on the part of OPs to replace the same with a new one despite assurance / undertaking given before this Forum to which strong objection has been taken. Regarding apportionment of liability of manufacturer and dealer, the Hon’ble National Commission is of the view in catena of judgments viz Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) in which the Hon’ble National Commission held that the petitioner being the seller of a defective computer under warranty was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. The Hon’ble National Commission in Ashoke Khan Vs. Abdul Karim (2006) 1 CPR 173 (NC ) held that for wrong committed by agent or dealer, consumer is entitled to have reimbursement from manufacturer and dealer as their liability is joint and several. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several. An agent who sales a product, is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. This view was held by Hon’ble National Commission in Emerging India Real Assets Pvt Ltd. and ANR Vs. Kamer Chand and anr in RP no 765/16 decided on 30.03.2016. In view of settled proposition of law, as discussed exhaustively in the aforementioned judgment of Hon’ble Supreme Court and Hon’ble National Commission, liability of both OPs is joint and several and coextensive qua the complainant. This issue is therefore decided in favour of complainant holding all OPs jointly and severally liable for deficiency of service. We therefore direct all OPs jointly and severally to refund the cost of the mobile i.e. Rs. 36,500/- to the complainant. We further direct all OPs jointly and severally to pay a sum of Rs. 5,000/- to the complainant as compensation of mental harassment and Rs. 3,000/- towards cost of litigation.
5. Let the order be complied with by both OPs within 30 days from the date of receipt of copy of this order.
6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on  18.04.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member