Punjab

Faridkot

CC/16/190

Gurdev Singh - Complainant(s)

Versus

Hari Om Enterprises Mobiles and Electronics - Opp.Party(s)

Raschpal Singh

22 Nov 2016

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :        190       

Date of Institution :   08.07.2016

Date of Decision :     22.11.2016

Gurdev Singh aged about 76 years s/o Sh Kehar Singh s/o Sh Sham Singh r/o Village Lande, now residing in Birdh Ashram/Senior Citizen Home, Talwandi, Kotkapura Bye-Pass, Near Sandhu Marriage Palace, District Faridkot.                                                                    

.....Complainant

Versus

1. Hari Om Enterprises Mobiles & Electronics Hut, Opp. Balbir Avenue, Near Idea Office, Circular Road, Faridkot.

2. Care Centre of LAVA, Shri Muktsar Sahib Road, Kotkapura, through its Authorized Signatory.

3. LAVA International Ltd, A-56, Sector 64, Noida – UP 201301, UP, India (Importer of LAVA Mobile Co.) Through its Authorized Signatory.

                

 ........OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh Purshotam Singla, Member.

 

Present: Sh R S Sidhu, Ld Counsel for Complainant,

              Sh M S Sodhi, Ld Counsel for OP-2 & 3,

              OP-1 Exparte.

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to replace the defective mobile with new one and to refund its cost price and for further directing OPs to pay Rs 50,000/-as compensation for harassment and mental tension suffered by complainant alongwith Rs.15,000/- as litigation expenses.

2                       Briefly stated, the case of the complainant is that complainant purchased one new LAVA XOLO A I010 Mobile hand set for Rs.4850/- on 26.04.2016 from OP-1 vide bill no. 339 dt 26.04.2016. At the time of purchase, OP-1 gave warranty for one year. It is contended that said mobile phone started giving problems just after some time of its purchase as it used to turn off automatically and sometimes, it stopped functioning in hanging condition. Complainant brought this fact to the notice of OP-1, who handed over the said mobile phone to OP-2 for repair, but even after 10-12 days of repair of said mobile phone, same defects started appearing in it. Complainant again approached OPs and disclosed the whole problem to them, but they did not listen anything and started making lame excuses. Repeated requests made by complainant for repair or replacement of said mobile bore no fruit. This act of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and mental tension to complainant. Complainant has prayed for directing OPs to replace the said mobile phone and to pay compensation of Rs.50,000/- for harassment and mental agony suffered by him besides Rs.15,000/- as litigation expenses. Hence, the present complaint.

3                         Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.07.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                   As per office report, notice containing copy of complaint alongwith relevant documents stands served to OP-1. It is clear that OP-1 had sufficient notice of complaint, but it did not come present in the Forum intentionally on date fixed and therefore, vide order dated 20.09.2016, OP-1 was proceeded against ex-parte.

5                    On receipt of the notice, OP-2 and 3 also filed reply taking preliminary objections that complaint in hand is not maintainable as it is without any technical report and complainant has not come to the Forum with clean hands and has also concealed the material facts. It is averred that answering OPs is a renounced company and has a number of service centres across the country and there is any issue regarding alleged unit, the complainant may approach any of service centre of OPs as they are always ready to provide services to the complainant. It is asserted that complainant has no locus standi to file the present case and it is only the greed of mind. No cause of action arises against answering OP as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b.Physical damage, c.Serial no.Missing, d. tampering, e. Mishandling/burnt. It is submitted that complainant never approached them regarding complaint about his mobile and he has not mentioned any complaint no. Or any job sheet no. As per Company standards and norms, Company use to enter all the complaints with IMEI no. No detail of any complaint has been mentioned about the visit or lodging of any complaint by complainant. It is further submitted that answering ops are still ready to repair  the unit if there is any defect in it. They have denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are false and fabricated and no financial loss or inconvenience is caused to him. Allegations with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering OPs.

6                           Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence affidavit of complainant as Ex C-1 and documents Ex C-2 and 3 and then, closed the evidence.

7                                 In order to rebut the evidence of the complainant, Counsel for OP-2 and 3 tendered in evidence affidavit of Ankit Aggarwal as Ex OP-2,3,/1 and then, closed the evidence of OP-2 and 3.

8                                  We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                 Ld Counsel for complainant has vehementally argued that purchased one new LAVA XOLO A I010 Mobile hand set for Rs.4850/- on 26.04.2016 from OP-1 vide bill no. 339 dt 26.04.2016. At the time of purchase, OP-1 gave warranty for one year. It is contended that said mobile phone started giving problems just after some time of its purchase as it used to turn off automatically and sometimes, it stopped functioning in hanging condition. Complainant brought this fact to the notice of OP-1, who handed over the said mobile phone to OP-2 for repair, but even after 10-12 days of repair of said mobile phone, same defects started appearing in it. Complainant again approached OPs and disclosed the whole problem to them, but they did not listen anything and started making lame excuses. Repeated requests made by complainant for repair or replacement of said mobile bore no fruit. This act of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and mental tension to complainant. Complainant has prayed for directing OPs to replace the said mobile phone and to pay compensation alongwith litigation expenses.

10                                 To controvert the allegations levelled by complainant, ld counsel for OP-2 and 3 argued that that complaint in hand is not maintainable as it is without any technical report and complainant has not come to the Forum with clean hands and has also concealed the material facts. It is asserted that complainant has no locus standi to file the present case and no cause of action arises against OP-2 and 3 as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b. Physical damage, c. Serial no. Missing, d. tampering, e. Mishandling/burnt. It is submitted that complainant never complained regarding performance of the mobile and OP-2 is still ready to repair the mobile phone and thus, there is no deficiency in service on the part of OP-3.  It is asserted that complainant never approached them regarding complaint about his mobile and he has not mentioned any complaint no. or any job sheet no. As per Company standards and norms,  Company use to enter all the complaints with IMEI no., but no detail of any complaint has been mentioned about the visit or lodging of any complaint by complainant. It is further submitted that Op-2  and 3 are still ready to repair  the unit if there is any defect in it. They have denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are fabricated and no financial loss or inconvenience is caused to him. Prayer for dismissal of complaint is made.

11                   The case of complainant is that he purchased a mobile phone from OP-1 against proper bill, but said phone had some inherent defect and despite repeated requests made by complainant before OPs, OPs did not repair the same up to his satisfaction. To prove his case, complainant  has placed on record copy of bill Ex C-2 and has reiterated his pleadings through Ex C-1. On the other hand, stand of OPs is that complainant never approached them with complaint of any defect in his mobile phone and even complainant has not produced on record any expert opinion. Moreover, OP-2 and 3 are still ready to repair the same if there is any defect subject to warranty conditions. All the other allegations are totally refuted.

 12                         From the careful perusal of evidence and record placed on file, it is observed that complainant purchased the mobile in question from OPs and he is facing some problem in using the same due to some inherent defects. Ex C-2, copy of bill in the name of complainant proves that complainant is the consumer of OPs. Plea taken by OP-2 and 3 that complainant never approached them does not seem proper because complainant has contended in complaint that OP-2 repaired the mobile phone in question when defect in said mobile arose for the first time and thus, they can not evade their liability for said mobile merely by saying that complainant never approached them. From the careful perusal of record, it can not be said that mobile in question was totally free from defects and it did not give any problem to its user. It is the sole responsibility of OPs to supply thoroughly checked, defect free mobile phones to its customers.

13                                  In the light of above discussion and keeping in view the aforesaid facts and circumstances of the case, we are fully convinced with the pleadings and evidence led by complainant and therefore, complaint  in hand is hereby allowed against OP-2 and 3. OP-1 is mere a shopkeeper and is not the maker of mobile phone in question and therefore, he cannot be held responsible for occurrence of any defect in mobile and warranty, if any, is to be given by Company and not by shopkeeper / retailer, thus, complaint against OP-1 stands dismissed. Both OP-2 and OP-3 are directed to replace the mobile phone in question with new one of same model. They are further directed to pay Rs.3000/-to complainant for harassment and mental agony and Rs2000/-for litigation expenses. Compliance of this order be made be made jointly and severally by OP-2 and 3 within one month of date of receipt of the copy of this order, failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in open Forum:

Dated: 22.11.2016

Member                President                                          (P Singla)            (Ajit Aggarwal)