BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.42/2017.
Date of instt.20.02.2017.
Date of Decision: 03.10.2017.
Harshit Ahuja son of Sanjay Ahuja, resident of Anjali Colony, Fatehabad, Tehsil and District Fatehabad.
..Complainant.
Versus
1.Global Services India Pvt. Ltd, Shop No.5, Ground Floor, Suncity Mall, Delhi Road, Hisar Haryana.
2. SAI VARDHAN ASSOCIATES PRIVATE LIMITED
31 Sanali Heaven Ameerpat Yellareddy Guda Hyderabad Telangana-500073
3.Apple India Private Limited No.-24, 19th Floor UB City Vittal Malviya Road Banglore- 560001.
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act, 1986.
Before Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt.Ansuya Bishnoi, Member.
Present : Sh.Sanjay Ahuja, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for the OP No.3.
OPs No.1 and 2 already ex-parte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the averments that one Rajender Singh, resident of House No.263, Fatehabad, purchased a mobile make Apple i-phone 5-S, 16 G.B. bearing IMEI No.352087071031232 from OP No.2 vide Bill No.67378/000000000156 dated 03.12.2015 for Rs.24,980/-. The above said mobile was purchased through PayTM and the payment was made in cash to the Ops. OP No.3 is manufacturer of the said mobile and the complainant purchased the said mobile from Rajender Singh and as such the complainant is consumer of the Ops. It is further averred that the said mobile was having a warranty of one year. However within a short period after purchasing of mobile it got defected and a fault-crept in the touch screen and touch of the mobile also got defected. Therefore the complainant visited the shop of OP No.1 for rectification of the defect in the mobile. OP No.1 handed over a job-sheet bearing No.50023144 dated 12.08.2016 and kept the mobile with him and assured the complainant that the mobile will be sent to the Company for repair. After some days, the complainant visited the shop of OP No.1 for receiving the mobile, but the OP No.1 replied that the mobile has not been repaired till date. Thereafter the complainant again visited the OP No.1 for receiving the mobile. However, the OP No.1 replied that they are not liable for repair of the mobile. The complainant made a request to OP no.1 to replace the mobile or make a payment of Rs.24,980/-, but the OP No.1 neither replaced the mobile nor refunded the price of the same. On account of deficiency in service the complainant has suffered financial loss, mental torture and physical harassment. Hence, the present complaint.
2. On notice OP No.3 i.e. Apple India Private Limited appeared and resisted the complaint by filing a written statement wherein various preliminary objections has been raised i.e. that the allegations made in the complaint are incorrect, misleading; that the present complaint is malafide; devoid of merits and against the principle of law; that the defect in the mobile does not fall within the warranty provided by the answering Ops. In reply on merits, it is submitted that the complainant had purchased the mobile in question from the Ops and Rajender was never a customer or purchaser of the mobile in question from the Ops. It is further averred that the authorized service provider IQOR found that the mobile in question was damaged due to dents and the same was in violation of the warranty issued by the OP No.3. Hence the service was denied and the mobile in question was handed back to the complainant. It is also averred that the mobile in question was damaged by the complainant himself and as such the mobile was referred out of warranty. Therefore the question to any defect or manufacturing defect in the mobile does not arise. It is also further submitted that expert evidence is required to prove the consumer complaint regarding manufacturing defect. However in the present case the complainant did not produce any evidence that the mobile is having manufacturing defect. It is settled propositions of law that mere bald allegations are not sufficient to prove a consumer case. The Ops in support of the above said contentions relied upon a decision rendered by Hon’ble Supreme Court in case titled as C.N.Anantharam Vs. M/s Fiat India Ltd.& Ors. It is also contended that adherence to the instructions contained in the warranty manual is pre requisites for admission of case of manufacturing defect. In the present case it was detected by the OP NO.3 that the mobile in question was damaged due to complainant’s own fault and as such it is out of warranty. Hence, the present complaint is without any merits and liable to be dismissed.
3. The OPs No.1 and 2 did not appeared and as such they were proceeded ex-parte on 28.03.2017.
4. In evidence the complainant tendered his affidavit as Annexure C1 wherein he has reiterated the averments made in the complaint. The complainant also tendered in evidence documents as Annexures C2 and C3 in support of his case and closed the evidence. On the other hand OP No.3 tendered in evidence affidavit of Priyesh Poovanna, Legal counsel as Annexure RW1/A and documents as Annexures R1 to R3 and closed the evidence.
5. We have heard the rival contentions of counsel of both the parties and have also examined all the documents placed on record of the present case. It is the case of the complainant that the mobile in question got defected within warranty period and the touch screen completely stopped to work and touch of the mobile also got defected. However the Ops neither replaced the mobile nor refunded the price of the same. Since it was a manufacturing defect in the mobile as such as per terms and conditions of warranty clause the complainant was entitled for replacement of the mobile. It amounts to deficiency on the part of the Ops in rendering service to the complainant. On the other hand it is a case of OP No.3 that the mobile was damaged on accounts of fault of the complainant himself. Therefore the case of the complainant does not fall within the purview of warranty provision. However the contentions of Ops that mobile in question was physical damaged is not supported by any cogent or convincing evidence. There is no opinion of any expert in the job-sheet or otherwise that the mobile got defected on account of physical damage/mishandling. Therefore the contention of the OP is not established. Whereas a perusal of the job-sheet Annexure R3 it is evident that the touch of the mobile was not working completely. Therefore we have to considered opinion that the complainant has proved his case to the extent that the mobile got defected within warranty period and the Ops has failed to rectify the same. Since no opinion of expert has been produced by the complainant that the mobile has a manufacturing defect as such the case of the complainant for replacement of the mobile is not made out. So the present complaint is allowed and the Op No.3 is directed to repair the mobile in question free of cost within a period of one month from the date of receipt of this order. In case the mobile is not repairable in that eventuality the OP No.3 shall replace the mobile with new one of the same description or same value. OP no.3 is further directed to make a payment of Rs.2000/- to the complainant as compensation for mental agony and physical harassment. This order be complied within one month, failing which the complainant will be at liberty to initiate legal action against the opposite parties as per Rules. Copy of this order be communicated to the parties free of costs. File be consigned to the record after due compliance.
Announced in open Forum.
Dated: 03.10.2017.
(Raghbir Singh)
President
(Ansuya Bishnoi) (R.S.Panghal) District Consumer Disputes
Member Member Redressal Forum,Fatehabad
