Date of filing :5.12.2017
Judgment : Dt.14.3.2018
Mr. Ayan Sinha, Member
This is a complaint under Section 12 of C.P.Act, 1986 (as amended upto date) made by Ram Krishna Singh, son of late Kalicharan Singh, residing at 284A, Diamond Harbour Road, P.S.-Thakurpukur, Kolkata-700 063 against Gionee India HQ, E-9, Block No.B-1, Ground floor, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110 044 (OP No.1), Gionee India Kolkata Regional Office, Unit-608, 6th floor, Merlin Infinite, DN-51, Sector-V, Salt Lake, Kolkata-700 091 (OP No.2), Gionee Service Centre, Galaxy, Electronics Trades, 14, Shree Chandra Palli, P.S.-Thakurpukur, Kolkata-700 063 (OP No.3), New S.M.Telecom, 136/4, Diamond Harbour Road, P.S.-Thakurpukur, Pora Ashwatthatala Bus Stop, Kolkata-700 063 (OP No.4) praying for directions upon the OPs to provide a new handset of similar model Gionee S6 Pro Gold, an order directing the OPs to discontinue unfair and deceptive trade practice, an order to pay compensation of Rs.60,00/- for sufferings and mental agony and an order for litigation cost.
Fact in brief are that Complainant bought one mobile phone bearing model No.GIONEE-S6 PRO GOLD on 8.11.2016 from OP No.4 for Rs.24,000/- with one year warranty against any manufacturing defect or any defect. The Complainant approached OP No.4 in December, 2016 for some problem in the mobile phone who after formal check up told there is some manufacturing defect in the hand set and also advised the Complainant to take up the issue with Service Centre since under warranty period. Thereafter, the Complainant approached OP No.3 who is the Service Centre of OP No.1 acknowledged the handset and generated a job sheet Job No.33173000406311 with a problem of internet and/or Mobile Data Connection but later OP No.3 could not repair the same handset and took back the job sheet from the Complainant. The Complainant had sent e-mail to Gionees Support Team against which the OP sent an e-mail dt.21.3.2017 to Complainant stating that “after investigation of the said handset, they have found that the said handset was physically damaged and as per the policy of their Company, the warranty does not cover any physical and/or liquid damage. The Complainant states in his petition of complaint that the same sophisticated handset was purchased from his hard earned money which he could not enjoy for one month. The OPs failed to redress his grievance and behaved very rudely causing mental agony. The Complainant has also stated that there are numerous consumers who were similarly treated by OPs and rest of the other consumers succumbed instead of fitting against it. Thus Complainant filed this alleging deficiency in services and unfair trade practice upon OPs.
Notices were served to all OPs but none of the OPs contested this case by filing written version, and finally the case proceeded ex-parte against all OPs vide Order No.6 dt.27.2.2018.
The Complainant in order to prove the case filed an affidavit-in-chief along with some documents.
Main point for determinations is to
- Whether Complainant is a consumer?
- Whether there is a deficiency of service upon OPs?
- Whether there is any unfair trade practice by OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
On perusal of the OF THE ORIGINAL Bill No.931 dt.8.11.2016 filed by Complainant, it appears that Complainant purchased one GIONEE-S6 PRO GOLD with IMEI No.861877030011646 from OP No.4 for Rs.24,000/-. The user guide for the said mobile and warranty card were also supplied by OP No.4, which is also filed by the Complainant. So, there is no dispute that Complainant is a consumer.
Point No.(ii) & (iii)
Complainant bought one handset for Rs.24,000/- on 8.11.2016 and in December, 2016 when the handset was having problem he approached OP No.3 the Service Centre they generated job sheet and later said they could not repair the handset and took back the job sheet. The Manufacturer Gionee India Pvt. Ltd. on 21.3.2017 just shrugged off their responsibility by sending e-mail that since it is physically damaged, the warranty does not cover as per policy of their Company. In this regard, several e-mail correspondences sent to manufacturing OP has been filed by Complainant, where it appears Complainant tried his level best to request the Gionee team to take necessary action and even requested the Gionee team to have a look at his handset whether physically damaged or not. But OPs did not reply.
Now, the question is why the Service Centre not recorded this mobile complaint at the time of receiving the handset as “Physically damaged and took back the job sheet No.3317300046311 from the Complainant that they could not repair and thereafter the OPs sent e-mail dt.21.3.2017 that it may be physically damaged. In this regard no copy of job sheet is filed by Complainant. OPs could have taken the initiative to advice again to their service centre for checking the handset, when Complainant repeatedly requesting the customer care of Gionee Team to see the handset.
There is no doubt that warranty shall cease and no longer be available with warranty terms and conditions mainly read as under:-
Clause 9 (iii) The product has been subject to use in a manner not according to instructions given in the User/Instruction Manual, mishandled, misused, improper storage, exposure to moisture/dampness, temperature or other such environmental conditions, unauthorized modification, unauthorized repair including but not limited to the use of unauthorized spare parts in repairs, Acts of God, spill of foods or liquids, maladjustments to Consumer controls or other acts which are beyond the resource/controls of the Company and defects that arise not due to normal wear and tear of the product.
(iv) The Consumer did not approach the Company or its Authorized Service Center about the alleged defect or malfunction of the product during the applicable limited warranty period.
(vi) Performance variations arising due to passage of time, sustained usage and climatic conditions. Any extraneous particle entering the product or damaging its physical property like water, dust, soil, burn or extreme temperature.
By mentioning the certain conditions in the warranty card does not mean that this was the fault of the Complainant when he bought a handset for Rs.24,000/- and OPs will shirk off their responsibilities. If at all, the matter of physical/liquid damage (as stated in e-mail of OP dt.21.3.2017) was not properly dealt with and not properly substantiated by OP in their e-mail. Moreover, the Complainant approached the Service Centre within the warranty period.
In spite of the receipt of notice, since the case remained unchallenged and unrebutted by all the OPs, we hold that there is a deficiency of service upon OPs, we do not hold OPs for unfair trade practice since no such evidence has been filed by Complainant to prove that OP has done an unfair trade practice.
Accordingly, both the points (ii) & (iii) are answered.
Point No.iv)
All the above points which are taken up together for repeatation of facts, we are inclined that the Complainant is entitled to the relief.
Complainant has also prayed for directing the OPs for discontinuation of unfair trade practice to which we have not allowed the same in point (iii). Complainant has also prayed for compensation of Rs.60,000/- as suffering of humiliation and mental agony and litigation costs which is exaggerated since the cost of mobile is Rs.24,000/- and compensation prayed for is Rs.60,000/-.
While awarding compensation, a Consumer Forum has to take into account all the relevant facts and cases compensations, on the basis of accepted legal principles, an accepted motivation. It is for the Consumer Forum to grant compensation to the extent, it finds it reasonable, fair and proper, in the facts and circumstances of a given case according to established judicial standards. Similar principle of law, was laid down in Charan Singh, Appellant VS Healing Touch Hospital and Others, Respondents AIR 2000 Supreme Court 3138. In Surendra Kumar Tyagi VS Jagat Nursing Home and Hospital and Another IV (20100) CPJ 199(NC) the principle of law, laid down, by the National Consumer Disputes Redressal Commission, New Delhi was to the effect, that the Compensation should commensurate with loss and injury, suffered by the Complainant. The Consumer Fora are not meant to enrich the consumers at the hands of the service providers by awarding excessive compensation.
We are of the view that if a direction is given upon OPs to replace with a new handset of similar model GIONEE S6 PRO GOLD as per purchased Bill No.931 dt.8.11.2016 issued by OP No.4, along with a compensation of Rs.3,000/- and litigation cost of Rs.2,000/- justice would be served.
Hence,
ordered
CC/684/2017 and the same is allowed ex-parte against OPs.
OPs are directed to handover a new defect free handset of similar model GIONEE S6 PRO GOLD with battery to the Complainant within 30 days from the date of this order at Complainant’s address. OPs are also directed to pay compensation of Rs.3,000/- and litigation costs of Rs.2,000/- to the Complainant within 30 days in default the total amount shall carry interest @ 9%p.a. from the date of this order till full realisation.
The liabilities of OPs are joint and several. Complainant is directed to handover the defective handset to the OPs upon receipt of the new handset.
