Jammu and Kashmir

Jammu

CC/345/2017

DARPAN GOEL - Complainant(s)

Versus

HTC INDIA - Opp.Party(s)

INPERSON

01 Sep 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

           (Constituted under J&K Consumer Protection Act,1987).

                                                          .

 Case File  No                364/DFJ           

 Date of  Institution      17-12-2016

 Date of Decision      :     20-08-2018

 

Mr.Darpan Goel,

S/O Sh.Arun Goel,

R/O H.No.F-100,Old Gurha Bakshi Nagar,

Jammu.

                                                                                                                                                Complainant

                   V/S

1. 1.HTC India Pvt.ltd.(Dopod)G-.4,

   BPTP Park Centre, Sec.30 Near

    NH-8 Gurgaon(Gurugram) 122001.

   Haryana India.

2..Network Communication,22-A,

   Shastri Nagar,Nai Basti Morh,

  Jammu,through its authorized Officer.

2. Manik Communication,Opp.Punjab & Sind Bank,

   Rehari Chungi,Jammu,

                                                                                     

                                                                                                           Opposite parties

CORAM

                  Khalil Choudhary             (Distt.& Sessions Judge)   President

                  Mrs.Vijay Angral                                                              Member

                  Mr.Ghulam Sarwar Chauhan                                         Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Anil Mahajan,Advocate for complainant, present.

Mr.Ashish Sharma ,Advocate for OP1&2,present.

Nemo for OP3.

 

 

                                                 ORDER

                              Grievance of complainant lies in short compass, in that; complainant purchased a mobile phone of HTC Desire 728 Dual Sim make for an amount of Rs.13,800/-on,16-08-2016( Annexure-A).According to complainant, within three four days, the handset developed problem and usually started overheating while normal use, he approached OP3 but  no proper heed was given to  his request. That after some days, the said handset developed some more problems and starting overheating and the touch screen was not responding properly to the commands, he again contacted OP3 and informed about the defect/problem in the said handset, on which OP3 directed him to contact OP2 (ASC  for HTC at Jammu)and the complainant was assured that no amount shall be charged by OP2 for the same as the said handset is within one year warranty period. Allegation of complainant is that on,14-09-2016 the said handset developed some major problem and the touch did not respond to the command, besides getting over heated, as such, he took the handset to OP2 where after proper verification and checking of the seal of the said product, the same was retained there and he was issued proper job sheet No.8657 dated 14-09-2016(copy of job sheet is annexed as Annexure-B). According to complainant, he received a phone call from OP2 that the handset had developed some major problem and would be sent to OP1 for removal of defects whatsoever and the same would be handed over to him within ten days. That the complainant received a call from HTC Support Customer Care Centre)on,20-09-2016 whereby he was informed that the said handset has developed some major hardware problem and the said hardware was required to be replaced with a new one for which Rs.13071/-was demanded from him and he was also directed to contact OP2 in that regard. That the complainant alongwith his younger brother,namely,Karan Goel  approached OP2 it was informed that the said amount is required to be deposited by the complainant for repair of said handset, complainant explained that as the handset is under warranty period, then under what rules and capacity the said amount is being asked to be paid by him, he did not get proper response from OP2 and he  was got contacted with  the Escalating Team of HTC Support on Mobile, wherein he was informed that they will look into the matter and sort out the problem. That the complainant continued communication with the said Escalating Team and after two days, it was informed by the said team that the handset was going to be returned back to OP2 in the same defective condition, despite such communications, the handset was returned back to OP2  and he was informed and rather directed by OP2 to collect the said handset from them in the same defective condition, that too, after depositing Rs.250/-with OP2,however as the said handset was not repaired, as such he did not take the same from OP2 and the same is still lying with them as on date. Further allegation of complainant is that he approached OP3 from whom the said handset was purchased against proper bill, he assured him that he would look into the matter, but despite lapse of long period, no positive response has been received by any of the OPs and this act of OPs. amounts to deficiency in service and un fair trade practice. In the final analysis, complainant prays for refund of cost of mobile and in addition, prays for compensation of Rs.40, 000/-including litigation charges.

                           On the other hand,OP1&2 filed written version and resisted the complaint on the ground that the complainant alleges manufacturing defect in the product. It is pertinent to mention hat alleged defect cannot be determined on the simplicitor submissions of complainant and needs a proper analysis test report to confirm the same. The complainant has miserably failed to prove the alleged manufacturing/technical fault neither placed on record analysis test report for the perusal of this Hon’ble Forum and in the absence of any technical repot on record, the complaint of complainant deserves dismissal on this ground alone. It is submitted that as per record, complainant approached OP2 Centre for repairs on,14-09-2016,the handset was collected and sent to Head Office Gurgaon for repairs. It is pertinent to mention here that the policy of OPs is to redress all the genuine complaints of complainant, however it is submitted that the complainant without any cause has exaggerated in making accusations against OPs in the complaint. It is further submitted that complainant has not suffered any hardship,inconvenience,mental agony or financial loss, but in fact it is OP1 (HTC)which is a reputed multinational company which has been harassed due to the nefarious designs of complainant,however,such defects usually arise due to mishandling of the units, as such complainant has not suffered any sort of mental agony and as such not entitled to any sort of compensation. The Ops are ready and willing to carry out any repairs as per warranty terms and conditions, in case any defect is found in the same.However,the onus is on the complainant to prove that there is any defect in the mobile unit. It is further submitted that there is no manufacturing defect in the mobile unit and neither there is any deficiency in service on the part of OPs,therefore,complaint is misconceived and liable to the dismissed.

                 Notice was also sent to OP3 alongwith copy of complaint through registered covers with acknowledgment due and as per record the notice was received by the OP3, but OP3, did not choose to represent its case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act,therefore,the right of OP3 to file written version stands closed vide order dated 23-03-2017.

           

                      Complainant adduced evidence by way of duly sworn evidence affidavit. Complainant has placed on record copy of invoice dated,16-08-2016,copy of job sheet dated 14-09-2016 and copies of mails.

                  Although OP1&2 filed written version, but after availing numerous opportunities failed to lead any evidence, so, the right of OP1&2 to file evidence was closed vide order dated, 31-05-2018.Therfore, unsubstantiated averments contained in the written version of OP1&2 cannot overweigh the evidence lead by the complainant.

               We have perused case file and heard L/Cs appearing for the parties at length.

                       On scanning the file, in our opinion the point which requires consideration  is that as to whether there is any deficiency in service on the part of Ops, in not redressing the grievance of complainant.

            Briefly stated case of complainant is that he purchased a mobile phone of HTC Desire 728 Dual Sim make for an amount of Rs.13,800/-on,16-08-2016,According to complainant, within three four days, the handset developed problem and usually started overheating while normal use, he approached OP3 but  no proper heed was given to  his request. That after some days, the said handset developed some more problems and starting overheating and the touch screen was not responding properly to the commands, he again contacted OP3 and informed about the defect/problem in the said handset, on which OP3 directed him to contact OP2 (ASC  for HTC at Jammu)and the complainant was assured that no amount shall be charged by OP2 for the same as the said handset is within one year warranty period. Allegation of complainant is that on,14-09-2016 the said handset developed some major problem and the touch did not respond to the command, besides getting over heated, as such, he took the handset to OP2 where after proper verification and checking of the seal of the said product, the same was retained there and he was issued proper job sheet No.8657 dated 14-09-2016(copy of job sheet is annexed as Annexure-B). According to complainant, he received a phone call from OP2 that the handset had developed some major problem and would be sent to OP1 for removal of defects whatsoever and the same would be handed over to him within ten days. That the complainant received a call from HTC Support Customer Care Centre)on,20-09-2016 whereby he was informed that the said handset has developed some major hardware problem and the said hardware was required to be replaced with a new one for which Rs.13071/-was demanded from him and he was also directed to contact OP2 in that regard. That the complainant alongwith his younger brother,namely,Karan Goel  approached OP2 it was informed that the said amount is required to be deposited by the complainant for repair of said handset, complainant explained that as the handset is under warranty period, then under what rules and capacity the said amount is being asked to be paid by him,he did not get proper response from OP2 and he  was got contacted with  the Escalating Team of HTC Support on Mobile, wherein he was informed that they will look into the matter and sort out the problem. That the complainant continued communication with the said Escalating Team and after two days, it was informed by the said team that the handset was going to be returned back to OP2 in the same defective condition, despite such communications, the handset was returned back to OP2  and he was informed and rather directed by OP2 to collect the said handset from them in the same defective condition, that too, after depositing Rs.250/-with OP2,however as the said handset was not repaired, as such he did not take the same from OP2 and the same is still lying with them as on date. Further allegation of complainant is that he approached OP3 from whom the said handset was purchased against proper bill, he assured him that he would look into the matter, but despite lapse of long period, no positive response has been received by any of the OPs and this act of OPs. amounts to deficiency in service and un fair trade practice.

                         In order to substantiate his allegations, complainant filed duly sworn evidence affidavit. Complainant has reiterated the contents of complaint, therefore, same need no repetition. On the other hand, despite OP1&2 was granted ample opportunities to support its version by leading evidence, but it failed to lead iota of evidence in support of its version.Therefore,version of OP1 &2 went unsubstantiated, unsupported and uncorroborated by cogent evidence, therefore, same being bereft of  legal strength, hence, cannot be read in evidence.

                      On the other hand, in support of his allegations complainant has placed on record copy of invoice, copy of job sheet and copies of communications exchanged between the parties. Therefore, we have no reason to discard with the prayer made by complainant for refund of cost of handset to the tune of Rs.13,800/- in view of supportive material placed on record.

                   The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act,1987, which provides that in a case where the OP1&2 omits or fails to take any action to represent its case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OP1&2 omits or fails to taken any action to represent the case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

              After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumers as per the purport of Section 2(d) of Consumer Protection Act and OPs are the service provider having failed in its statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumers. The consumers have to come forth and seek for redressal of their grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                          Therefore, in view of aforesaid discussion complaint is allowed and Ops are directed to refund cost of handset to the tune of Rs.13,800/-to the complainant. We further direct OPs to pay Rs.5,000/-as compensation for causing harassment and mental agony to complainant and Rs.5,000/-as cost of litigation. The OPs shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                            (Khalil Choudhary)                               

Announced                                                           (Distt.& Sessions Judge)

20-08-2018                                                               President

                                                                            District Consumer Forum

Agreed by                                                                 Jammu.

                                                               

  Ms.Vijay Angral          

  Member                                                                                               

 

Mr.Ghulam Sarwar Chauhan

Member