BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.264/15.

Date of instt.: 29.10.2015. 

                                                 Date of Decision: 19.07.2016.

Amit son of Sh. Kailash Gupta C/o Kailash Medical Hall, near Oriental Bank of Commerce, Railway Road, Kalayat, Tehsil Kalayat, Distt. Kaithal.

                                                        ……….Complainant.     

                                        Versus

1. Gulati Mobile Zone Computer and Computerized Mobile Repair, Railway Road, Kalayat, Distt. Kaithal.

2. City Complex, Vishnu Market, Kaithal.

3. Lava/Xolo Parth Agencies, Vishnu Market, Kaithal, through its proprietor/partner.

4. Xolo, Lava International Ltd., A-56, Sector-64, Noida (UP). 

..……..Opposite Parties.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986. 

Before:           Sh. Jagmal Singh, President.

                        Sh. Rajbir Singh, Member.

     Smt. Harisha Mehta, Member.

Present :         Sh. Som Dutt Sharma, Advocate for complainant.

Sh. Vikram Tiwari, Advocate for the opposite parties.No.3 & 4.

Ops No.1 & 2 already exparte.

                       ORDER

(HARISHA MEHTA, MEMBER).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile of Xolo-OPAS bearing IMEI No.911404900179740 and IMEI No.911404900230246 from the Op No.1 for sum of Rs.8200/- vide invoice No.2457 dt. 09.05.2015.  It is alleged that soon after the date of its purchase, the said mobile set was not working properly with the problems of P.C. connecting picture, quality of camera, hanging and at the same time got switched off at its own.  It is further alleged that the complainant approached the Op No.1 for its repair and on the asking of Op No.1, he approached the Op No.2 and the Op No.2 told the complainant that at that time, the present market value of his mobile is Rs.6600/- and if he paid Rs.1800/-, then the Op No.2 provide the mobile Q1000 S Plus.  It is further alleged that the complainant got replaced his old mobile set with new mobile by giving extra Rs.1800/- to the Op No.2 vide invoice No.30 dt. 08.09.2014.  It is further alleged that the original bill of mobile Xolo-OPAS-3 bearing IMEI No.911393250101711 was kept by Op No.2 and given new bill of Rs.1800+Rs.6600/- with fresh warranty.  It is further alleged that soon after the date of purchase of new mobile, there was same problem as in the old mobile set.  It is further alleged that the complainant approached the Ops regarding repair of above-said mobile set but despite repair made by Op No.3, the said mobile set was not in working condition.  This way, the Ops are deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite parties No.3 & 4 appeared before this forum, whereas Ops No.1 and 2 did not appear and were proceeded against exparte.  Ops No.3 and 4 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant with regard to his complaint regarding the mobile approached the service-centre of company on 06.08.2015 and the engineer of company checked the unit properly and resolved the problem as reported by the complainant and handed over the mobile in complete O.K. condition on 24.08.2015, but the complainant after got repaired his mobile, started demanding that the mobile should be replaced with new one; that the company provides one year warranty on the unit, warranty means in case of any problem with the unit, the unit will be repaired or its part will be replaced as per company policy.  It is also submitted that the Ops are still ready to repair the unit as per company policy, so, there is no deficiency in service on the part of answering Op.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

3.     In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and document Ex.C1 and Mark CA & Mark CB and closed evidence on 27.05.2016.  On the other hand, the Ops tendered in evidence affidavit Ex.Op3 and closed evidence on 17.06.2016.   

4.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties. 

5.     Ld. Counsel for the complainant reiterated all the points mentioned in the complaint.  He argued that the complainant purchased a mobile of Xolo-OPAS from the Op No.1 for sum of Rs.8200/- vide invoice No.2457 dt. 09.05.2015 but the said mobile set was not working properly with the problems of P.C. connecting picture, quality of camera, hanging and at the same time got switched off at its own.  He further argued that the complainant approached the Op No.2 and the Op No.2 told the complainant at that time that presently, the market value of his mobile is Rs.6600/- and if complainant paid Rs.1800/-, then the Op No.2 will provide him another mobile Q1000 S Plus.  He further argued that the complainant got replaced his old mobile set with new mobile by giving extra Rs.1800/- to the Op No.2 vide invoice No.30 dt. 08.09.2014 but there was same problem as in the old mobile set.  On the other hand, ld. Counsel for the Ops No.3 and 4 argued that the complainant with regard to his complaint regarding the mobile approached the service-centre of company on 06.08.2015 and the engineer of company checked the unit properly and resolved the problem as reported by the complainant and handed over the mobile in complete O.K. condition on 24.08.2015.  He further argued that the company provides one year warranty on the unit, warranty means in case of any problem with the unit, the unit will be repaired or its part will be replaced as per company policy.  He further argued that the Ops are still ready to repair the unit as per company policy.

6.     From the pleadings and evidence of the parties, it is clear that the above-said mobile set of Xolo-OPAS purchased by the complainant on 09.05.2015 became defective and on 08.09.2015 the Op No.2 replaced the same with new mobile of XOLO Company Model No.Q1000S after receiving extra amount of Rs.1800/- from the complainant, as is clear from the bill, Ex.C1.  But the said mobile set also became defective during the warranty period, as is clear from the job-sheet dt. 25.09.2015, Mark-CB.  Moreover, the Ops No.3 and 4 have admitted that the Ops are still ready to repair the unit as per company policy.  The grievance of the complainant is that the said second mobile set was not repairable and not in working condition and the Ops did not replace the same with new one.  To prove his case, the complainant has tendered in evidence affidavit, Ex.CW1/A, original bill, Ex.C1, copy of bill, Mark-CA and copy of job-sheet dt. 25.09.2015, Mark-CB.  In the said job-sheet, Mark-CB, the problem of “Power key not work” has been shown in the column of problem description and problem of “Keys not working” has been shown in the column of symptom reported.  So, from the said job-sheet, it is clear that the mobile set became defective at the initial stage as the same was purchased on 08.09.2015 and the job-sheet is dt. 25.09.2015, which is within the warranty period.  Whereas, on the other hand, the Ops No.3 and 4 tendered in evidence only the affidavit, Ex.OP3 and they did not tender any document.  The Ops No.1 and 2 did not appear and opt to proceed against exparte.  So, the evidence adduced by the complainant against Ops No.1 and 2 goes unrebutted and unchallenged.  As already stated above, the new mobile set after replacement purchased on 08.09.2015 and taken to the Ops on 25.09.2015 for repair but the Ops have failed to remove the defects, therefore, we are of the considered view that the Ops are deficient while rendering services to the complainant.     

7.     Thus, in view of above discussion, we allow the complaint  and direct the Ops to replace the defective mobile set of the complainant with new one of the same model, as purchased by the complainant vide invoice No.30 dt. 08.09.2015.  However, it is made clear that if the said mobile as purchased by the complainant,  is not available with the Ops, then the Ops shall refund Rs.8400/- (Rs.6600/-+Rs.1800/-) as the cost of mobile set to the complainant.  The Ops are also burdened with cost of Rs.1100/- as compensation for harassment, mental agony and costs of litigation charges to the complainant.  All the Ops are jointly and severally liable.  Let the order be complied with within 30 days from the date of communication of order.  A copy of this order be sent to both the parties free of costs.  File be consigned to the record room after due compliance.

Announced.

Dt.19.07.2016.

                                                                (Jagmal Singh),

                                                                President.

                (Harisha Mehta),     (Rajbir Singh),       

                        Member.         Member.