Delhi

North East

CC/142/2015

Sanjeev Patel - Complainant(s)

Versus

HTC India Pvt. Ltd. - Opp.Party(s)

21 Aug 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 142/15

In the matter of:

	Shri Sanjeev Patel S/o Santosh Patel H.No. 107, Gali no. 13 Jai Prakash Nagar, Ghonda Bhajan Pura, North East Dehi-110053	Complainant
	Versus
1             2           3	HTC India Pvt. Ltd. Regd. Office:- Unit No. 4, Ground Floor BPTP Park Centre Sector-30, Near NH-8 Gurugram, Haryana-122001   HTC Service Centre TVS Electronics Ltd., South Phase 7A, Second Floor Industrial Estates, Guindy Chennai-600032   Cariano Telecom Pvt. Ltd. 6 E/8-E, Kamla Nagar Delhi-110007	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

21.04.2015 21.08.2020 21.08.2020

Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that he had purchased an HTC Desire V(T328W) IMEI no. 352795058806075 mobile manufactured by OP1 from OP3 on 13.11.2012 for a sum of Rs. 16,500/- inclusive of VAT vide invoice no. 555. However, the screen of the subject mobile phone started giving problem of abnormal display within four months of its purchase and the complainant submitted the same for repairs with OP2, Authorized Service Centre (ASC ) of OP1 on 10.03.2013 and the subject mobile phone was returned by OP2 to the complainant after undertaking repairs but barely after few weeks, the earphone of the subject mobile phone started malfunctioning and the handset developed other problems viz. motherboard etc., for which it had to be repeatedly submitted for repairs five to six times between April 2013 to November 2013 and was lastly handed over by OP2 to the complainant in December 2013 when the subject mobile phone was past its warranty and thereafter it had to be submitted for repairs with OP2 when its memory card and screen issues were rectified but the mobile phone failed to function and has been completely dead since February 2014. Therefore, the complainant has filed the present complaint against the OPs for having sold a defective mobile phone and failure to repair the same praying for issuance of direction against OPs to refund the cost of the mobile phone i.e. Rs. 16,500/- alongwith interest @ 20% and has sought relief of Rs. 2,00,000/- towards physical strain and mental agony and Rs. 1000/- towards cost of litigation.
2. Complainant has attached copy of retail invoice dated 13.11.2012 and copy of emails exchanged between complainant and OP1 & OP2 between January 2013 to January 2015 pertaining to problems in the mobile phone and its submission with HTC customer service supported with certificate u/s 65B of Indian Evidence Act.
3. Notice was issued to the OPs on 11.05.2015. OP2 appeared on 16.07.2015 and was provided with the complete paper book of complaint. However, it failed to appear thereafter and also failed to file its written statement and was therefore proceeded against ex-parte vide order dated 02.11.2015. OP1 also failed to appear despite service effected and was therefore proceeded against ex-parte vide order dated 08.02.2016. OP3 entered appearance and filed its written statement vide which, while admitting the factum of the sale of the subject mobile phone by it to the complainant on 13.11.2012, took the  preliminary objection that the subject mobile phone was sold to the complainant in a sealed pack box which was opened it by complainant himself who then satisfied himself about the functioning of the said mobile phone and was also made aware by OP3 about the warranty terms and conditions attached with the subject handset being that of the manufacturer i.e. OP1 and not of the seller / retailer i.e. OP3 itself and the complainant understood all the terms and conditions at the time of purchase of the subject handset. OP3 further objected to it being made a party to the present complaint on grounds of it being a mere shopkeeper dealing in sale of mobile handset and was neither a manufacturer nor a service provider and even otherwise the complainant has not alleged any tampering with the seal on the packaged box of the mobile and therefore no cause of action arose against OP3 as all allegations against it are neither direct nor indirect and are even vague and misleading. On merits OP3 resisted the complaint on grounds of the same having been invoked under wrong provision of law and that the complainant had never approached OP3 with respect to the alleged defect in the subject handset or having submitted the same with OP2 on any alleged advice given by OP3. Per contra OP3 submitted that the complainant himself approached OP2 knowing fully well that it was the ASC of OP1 and OP3 was a mere seller. For the defence so taken, OP3 prayed for dismissal of the complaint.
4. Rejoinder and evidence by way of affidavit was filed by the complainant reiterating his grievance made in the complaint and submitted in addition to the pleadings that OP2 failed to rectify the problem in the subject mobile phone despite keeping it with itself for long duration which wasted the warranty period as a result of expiry of which, the complainant had to bear the repair charges but even after incurring the expenditure, the subject mobile phone did not function. The complainant also submitted that due to poor service of HTC mobile phone, many shopkeepers have pasted notice discouraging customer to buy HTC manufactured handset and also attached copy of photographs of such notices.
5. Evidence by way of affidavit was filed by OP3 through its director in reassertion of defence taken in its written statement. However, none appeared on behalf of OP3 thereafter from August 2016 onwards and was therefore proceeded against ex-parte vide order dated 09.03.2018. However, in accordance with the settled law passed by Hon’ble NCDRC in Bank of India Vs N.V. Deoras 1997 (3) CPR 63 (NC), the written version and pleadings filed by a party which has been proceeded against ex-parte shall be considered when the case is taken up for hearing and decision on merits, the pleadings filed by OP3 shall be considered in its defence.
6. Written arguments were filed by the complainant in reiteration of his grievance against OP2 for having sold a defective mobile phone which had to be repeatedly submitted for repairs in March 2013, April 2013, May 2013, June 2013, August 2013 and lastly November 2013 within its warranty period but the defects were never cured and therefore prayed for relief claimed.
7. We have heard the arguments addressed by the complainant through video conferencing and have perused the records. The purchase of the subject mobile phone is not in dispute. However, the complainant has not placed on record any job sheet pertaining to deposit of the subject mobile phone with OP2 for the alleged defects therein between March 2013 to November 2013 while the handset was under warranty and has merely placed reliance upon emails by OP1 & OP2 customer service seeking complainant’s feedback and quick survey. The detailed email dated 07.01.2015 by complainant to OP1 & OP2 regarding defects in the subject mobile phone was for the period when the subject mobile phone was out of warranty and reply thereto by OP1 & OP2 is also to the effects of last repair having been undertaken on 18.11.2013 when the subject phone was under warranty (having been purchased in November 2012) and OPs therefore sought repair charges as the subject mobile phone was rendered out of warranty. The complainant in our opinion has failed to adduce his best evidence to support his complaint and the onus squarely lied on him to prove the defects in the subject mobile phone by way of job sheets. Hon’ble National Commission in TATA Engg. and Locomotive Co. Ltd. Vs. Sunil Bhasin (2008) II CPJ 111 (NC) held that the complainant failed to follow procedure laid down under Section 13(b) of CPA to determine the defects nor obtained any expert opinion to prove the alleged defects and held in Eicher Motors Ltd. Vs. Mahindra Nirmal Kumar Nirmal 2000 (1) CPR 89 (NC) that manufacturing defect should be resolved on the basis of evidence adduce or a technical expert opinion. The Hon’ble National Commission in Engineers International Vs District Forum V. Vasudeva Rao 1997 (2) CPJ 3 (NC) dismissed the complaint on grounds of failure to produce any evidence to substantiate the claim. Hon'ble National Commission in recent judgment of Bhagwan Singh Shekhawat Vs M/s R.K. Photostate and Communication in RP no. 4089/2012 decided on 07.03.2017 held in absence of any expert opinion and different defects occurring in the mobile handset over a period of use to be not a manufacturing defect. It is not the case of the complainant that the OPs had charged for repairs of the subject mobile phone within the warranty period which they were even otherwise under legal obligation to undertake repairs free of charge and as per the settled law, any repair after warranty period is chargeable as was also held by Hon'ble National Commission in Godrej GE Appliances Ltd. Vs Satinder Singh Sobti 2000 (1) CPC 602 (NC) that the manufacturer cannot be directed to provide free service after warranty period and the complainant cannot claim free service after the expiry of the warranty period. In the present complaint the complainant has relied solely upon his affidavit which in our considered view is not sufficient to hold that there was manufacturing defect in the mobile handset because the complainant is not an expert and has failed to adduce any evidence on record to prove the defects in the handset. Simply, non-repair of mobile phone during warranty period does not ipso facto prove manufacturing defect and therefore the plea of the complainant of such allegations is defeated on concept of ipse dixit. We therefore do not find any merits in the present complaint and following the principle laid down by Hon'ble National Commission in Pushpa Bhutani Vs. HUDA, Hisar (2006) 3 CPR 239 (NC) and Shahenn Khan Vs. Oriental Insurance Co. Ltd. (2006) 3 CPR 15 (NC), dismiss the present complaint as the complainant has been unable to prove his own averments and has withheld his best evidence from the Forum which could or may have supported his allegations against the OPs.
8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.  File be consigned to record room.
10.   Announced on  21.08.2020

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member