Delhi

North East

CC/239/2015

Shri Fassiuddin - Complainant(s)

Versus

HCL Touch - Opp.Party(s)

29 May 2017

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.239/15

 

 

In the matter of:

 

	Shri Fassiuddin R/o Lane No. 33, Tughlakabad Extn. Hamdard Nagar, Delhi-110010.	Complainant
	Versus
1	HCL Touch East 114 Veer Savarkar Block Vikas Marg, Metro Station, Pillar No. 58 Shakarpur, Delhi.
2	WS Retail Services Pvt Ltd. Khasra No. 435, Lal Dora Extn. Mahipalpur, New Delhi-110037.
3	Xiaomi M I India 944/11, Laxmi Complex, Nehru Road Arjun Nagar, Opposite Defence Colony New Delhi-110003.	Opposite Parties

 

	DATE OF INSTITUTION:	08.07.2015
	DATE OF DECISION      :	29.05.2017

 

 

 

 

 

 

N.K. Sharma, President:-

 

ORDER

 

 

1. As per complaint complainant purchased a mobile phone VF00403 of OP3 make from OP2 through Flipcart for a sale consideration of Rs. 9999/-, vide invoice dated 20.1.2015. Since the very beginning the mobile set was having problem of, yellow spots on screen, hanging and heating while getting it charged. On complaint to OP1- the service centre of OP3- officials of OP1 stated that it is a minor problem which shall be cured by itself during the course of time and not repaired the mobile.  On much insistence complainant was asked to leave the mobile for at least 15 days. Complainant got ready to leave but OP was not providing jobsheet. Hence he did not submit the mobile. Two days back before filing this complaint, on mobile getting charged, complainant observed that just after 15 minutes it got heated. Immediately complainant disconnected the charger but by that time the data cable of mobile got melted. On complaint whereof officials of OP1 were ready to repair but against payment only as according to them the melting and heating problem was not covered under warranty, while exclusion clause 4 of warranty condition not include heating and resultant melting. Thus OP1 did not rectify the mobile. Complainant approached OP1 so many times but OP1 used to avoid to rectify the defect of heating and resultant melting and harass the complainant, while problem of heating is still persisting. Even for looking into the problem  OP1 is pressurising the complainant to deposit the handset but not issuing jobsheet which is an unfair trade practice on OP’s part. Besides heating in the mobile even at this initial stage is a manufacturing defect for which complainant is entitled for either replacement or refund of cost of mobile.
2. Complaining as aforesaid complainant has prayed for grant of directions from this forum to the OPs jointly and severally :-

1. To replace the mobile handset with seal pack new one; or
2. Refund the cost of mobile handset as per invoice amounting to Rs. 9999/- alongwith interest thereon @24% per annum from the date of payment i.e. 20.1.2015; and
3. Pay compensation of Rs. 10,000/- for the inconvenience caused due to not being able to use the mobile phone as well as harassment meted out by complainant in not being entertained by OP3- service centre; and
4. Litigation cost of Rs. 5000/-.

    

3. All the three OPs were duly served but they did not appear in this forum even after providing two opportunities. Hence, vide order dated 4.8.2015 all OPs were proceeded against ex parte. Later on only OP2, by getting Ex-parte order set-aside, filed its reply, while nobody came forward on behalf of OP1 and OP3 during the course of entire proceedings in this complaint. As per reply of OP2 it raised preliminary objections of suppressing material facts from, and not coming to, with clean hands and trying to mislead, this forum by presenting a concocted story, by the complainant. On merits OP2 states that he being only a seller and not manufacturer no cause of action arises against it. Complaint is malafide made to the defame OP and to extort money illegally from it.  Grievance in complaint is of alleged defect in mobile and non repairing thereof by OP1. Liability whereof lies against OP1 and OP3 only.  It is not liable to provide after sale service, being neither the manufacturer nor its authorised service centre.  It has no facility or technical knowhow to ascertain the defect/ manufacturing defect. The product sold by it carries warranty only by the respective manufacturer.  Not specifically denying the purchase OP2 states that it is a matter of records. Its only responsibility, was to deliver the mobile to the complainant in the same box as received by it from the manufacturer, which comes to an end as soon as it is delivered in time. Allegation of the problem in mobile is not supported by any evidence. With respect to visits of complainant to OP1 and communications between the two it has no knowledge. Complainant has used the product for almost six months without any problem from the date of purchase and was only in the month of July 2015 that the product developed problems. Duty to remove the same was of OP1 and OP3 only. It is not a case of shortage of supply or delay of the product for which it only might be responsible and for the defect in the goods manufactured by others. Complainant failing to establish any cause of action against OP2 complaint be dismissed against it.

            

4. By filing re-joinder to the reply of OP2 complainant denying all the averments in the reply has reiterated contents of the complaint. It is very much maintainable being against OP2. It is not devoid of any merit and averments made in complaint are not baseless. Complaint is not made with the intention to defame OP2 and for extorting money illegally from it. No doubt responsibility of warranty is of other OPs but OP2 is also guilty of selling product having a manufacturing defect. Thus it is also liable for the same jointly and severally alongwith OP1 and OP3. Every time mobile developed problems OPs were approached who cleverly taking the complainant into confidence avoided to repair the mobile by not issuing jobsheet for the same.
5. Both complainant as well as OP2 filed their respective affidavit of evidence. OP2 did not place on record any document while documents placed on record by the complainant are copies of, Invoice as ECW/1 and Warranty Documents as ECW/2 and service jobsheet.
6. Heard complainant and OP2 and perused the record.

 

7. Perusal of the annexure ECW/1 show that this invoice has been issued by OP2 against payment of Rs. 9999/- for sale of handset VF00403 bearing IMEI No. 865980021881294 on 20.1.2015. Exhibit CW/2 show that OP2 has provided one year warranty of hardware product while six month for the battery charger and accessories with product. As per clause 4 whereof following defects are not covered under the warranty :-

• The product serial number, IMEI number or warranty seal is illegible or has been removed, erased, defaced, altered, and/or tampered. If any accessory or external part of the product is missing.
• Any damage occurs in/on outer surface of the product, including but not limited to cracks, dents or scratches on the exterior cases, screens, camera lenses, buttons and other attachments.
• General maintenance, password reset assistance, cleaning, application update, installation, product demonstration, or any other service than repair/replacement.
• Deterioration of the product caused by normal wearing and tearing, including but not limited to rust or stains;
• Any other circumstances that are contradictory or are not in compliance with business ethics. 

 

 

 

Perusal of all these conditions show that defects of heating of mobile while charging and consequent melting is not provided under this exclusion clause.

8. On the basis of above said findings complainant has successfully established the purchase of mobile in question from OP2. There was interalia defect of heating on charge in the mobile which problem was not rectified by OP1 even till 14.12.2015 when service centre of OP3 issued jobsheet.  OP1 and OP3 chose not to appear and controvert complainant’s evidence. OP2 also though filed its reply but on the one hand it has alleged that the complaint is false and vexatious but on the other hand it states that it has no concern with the defect in question for which only OP1 and OP3 are liable. However, no document in support of its defence has been placed on record by OP2. It has also not specifically controverted complainant’s evidence. Rather admitted the sale of the mobile in question to the complainant by it.       
9. Therefore, the evidence lead by the complainant being not controverted by all the OPs is deemed to proved. It is proved that the mobile delivered by OP2 to the complainant is having a manufacturing defect which could not be rectified by the OPs even after approaching OP1 the service centre of OP3 a number of times and even after getting the same deposited with another service centre of OP3 within warranty period on 14.12.2015.
10. Thus, holding, all the OPs guilty for selling a defective mobile and for deficiency in service to OP1 and OP3 only for not rectifying defect in the mobile, we direct all the OPs

1. To either replace the defective mobile with another brand new sealed pack mobile of the same description being VF00403 having full warranty.               Failing which
2. To refund the entire cost of mobile aforesaid. Jointly and severally; and
3. To  OP1 and OP3 only to pay a compensation of Rs. 5,000/- for deficiency in service on their part and litigation cost of Rs. 2,000/- to the complainant, jointly and severally.  

11. All these amounts shall be paid within 30 days from the date of receipt of copy of this order beyond that cost of the mobile shall carry interest thereon @ 12% p.a. from the date of its purchase.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. File be consigned to record room.

 

(Announced on:  29.05.2017)

 

(N.K.Sharma)    President

(Nishat Ahmad Alvi) Member