Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 454.
Instituted on : 08.12.2014.
Decided on : 11.05.2015.
Sh. Ashish s/o Sh. Ajit Singh, R/o 1202, Sector-1, Rohtak.
………..Complainant.
Vs.
- Managing Director, HTC Mobile Company, G-4, BPTP Park Centre, Sector-30, Near NH-8, Gurgaon-122001(Haryana).
- Manager, Swastik Systems, Shop No.-7, Bapu Asha Ram Complex, Chhotu Ram Chowk, Rohtak-124001(Hayana).
- Managing Director, TVS Electronics Ltd., South Phase-7A, 2nd Floor, Industrial Estate, Guindy, Chennai-600032.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh. Bharat Jain, Advocate for the complainant.
Opposite party No. 2 in person.
Opposite party no. 1 & 3 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a mobile set model HTC Desire 600C on 23.11.2013 bearing its IMEI No.357211050241613 for a total price of Rs.29500/- vide bill no.4176 dated 09.12.2013. It is averred that the opposite party no.1 & 3 is the manufacturers/officials of the HTC Mobiles and the opposite party no.2 is the authorized service centre of opposite party no.1 & 3 HTC Company. It is averred that the complainant was facing technical problems related to poor range in CDMA, hanging issue, application start open automatically, poor battery life, camera hanging, shutdown without giving any command, software issues etc. and therefore the complainant went to the authorized service centre at Delhi many times but every time opposite party’s officials just formatted it and returned it back to the complainant and they never provided any receipt of job sheet etc. to the complainant. It is averred that the complainant again and again went to the opposite party no.2 and he was not provided any receipt of it and the opposite party no.2 kept the phone under receipt dated 23.06.2014 and again under job sheet no.DEL023-0002163 dated 21.11.2014 but till 01.12.2014 the set was not provided to the complainant in time and it was told that they sent it to HTC headquarter for repair and prescribed part is not available there and it will take more time but till date the same is not repaired by the opposite parties. It is averred that the act of opposite parties of supplying the defective handset and not repairing the same despite his repeated requests and reminders is illegal and amounts to deficiency in service. It is averred that the legal notice dated 01.12.2014 was also served upon the opposite parties but no response has been received as yet. As such it is prayed that the opposite parties be directed to refund the price of mobile Rs.29500/- along with interest, to pay Rs.25000/- as an Advocate’s consultancy fee & litigation charges and Rs.20000/- as compensation on account of mental agony & harassment to the complainant.
2. Notice of the present complaint was sent to the opposite parties. But opposite party no. 1 & 3 did not appear and as such were proceeded against exparte vide order dated 21.01.2015 of this Forum. However opposite party no.3 sent its written statement through registered post submitting therein that the present complaint is not maintainable and liable to be set aside for suppression of material facts and lack of authenticity. It is averred that opposite party no.3 is not the manufacturer of HTC mobiles as erroneously reported in the complaint. Opposite party no.3 is only an authorized service centre of HTC India Pvt. Ltd. for providing warranty service. It is averred that complainant has never contacted opposite party no.3 for any kind of repair or service and opposite party no.3 is totally unaware of the case. It is prayed that the present complaint may kindly be dismissed against opposite party no.3.
3. However, opposite party no.2 vide its written reply has submitted that the present complaint is not maintainable as the answering opposite parties are ready go give a new handset to the complainant, but he is not willing and has refused to accept the new set. He has intentionally filed this complaint to grab compensation abusing the systematic process of law. It is averred that the complainant has not make the party to Delhi Authorized Service Centre. On merits it is submitted that the answering opposite party is a collection point and its duty has been fixed by the company only to collect defective handset of HTC company and deliver them to the customer after repairs. It is averred that the complainant contacted the opposite party first time only on 23 June 2014, after constantly using his phone, without any trouble. His handset was taken for necessary repair vide job No.DEL-023-0000950 on the same day with a proper receipt and the same was returned to the complainant on 24th June 2014 after repair. But after a gap of 5 months, the complainant contacted the opposite party again on 21st November 2014 and insisted to take a new handset being in warranty period. It is averred that his handset was sent to the company for necessary replacement and his new handset was received on 8th December 2014 and he was informed accordingly but the complainant refused to collect the handset and has filed the complaint as such it is averred that there is no deficiency in service on the part of answering opposite party. It is averred that the company is ready to extend warranty period of the hand set for the period the set remained in repair process.
4. Both the parties led evidence in support of their case.
5. Complainant in his evidence tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C9 and has closed his evidence. On the other hand, opposite party no.2 in his evidence has tendered affidavit Ex.RW1/A and has closed his evidence.
5. We have heard ld. Counsel for the complainant as well as opposite party no.2 and have gone through material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile set for a sum of Rs.29500/- on 09.12.2013 of HTC company as is proved from bill Ex.C1. It is also not disputed that as per reply of opposite party no.2 complainant deposited his handset for repairs on 23.06.2014 and the same is also mentioned on copy of bill Ex.C2. After that the complainant again deposited his handset with the opposite party no.2 vide job sheet Ex.C3 dated 21.11.2014 for the problems “Poor range in CDMA, hanging issue, application start open automatically, poor battery life, software issues etc.” Complainant requested the opposite parties to replace the handset as the same was under warranty period but the same was not done and the complainant vide his mail dated 01.12.14 Ex.C4 and Ex.C5 dated 07.12.2014 requested to refund the price as he had been facing a lot of difficulty due to the defective mobile and had to purchase a new handset. Complainant also served a legal notice Ex.C6 dated 01.12.2014 to the opposite parties but the same was not replied. As per mail dated 02.12.2014 opposite party informed the complainant that it will take more time to repair and apologize for delay in repair. As per mail dated 08.12.2014 the opposite party informed the complainant that his handset has been repaired and was in transit.
7. After going through the file and hearing the parties it is observed that it is admitted by the opposite party no.2 vide its job sheet Ex.C3 that defects in the mobile set appeared within warranty period. The contention of the opposite party no.2 is that the alleged handset was got repaired from the company but the complainant is not ready to take the alleged repaired handset. It is further contended that the opposite party no.2 is only authorized to collect defective handset of HTC company and deliver them to the customer after repair of set and it is only the duty of company/manufacturer regarding the manufacturing defect and has also given a statement to this effect on dated 06.05.2015. It is also observed that as per the documents Ex.C2 to Ex.C9 placed on record by the complainant it stands proved that the problem in the handset appeared within warranty period but the same could not be repaired by the opposite parties till filing of the complaint by the complainant and due to non-repair/replace of handset, the complainant had to purchase a new handset. The set in question is still in the possession of the opposite party no.2 i.e. Service Centre and as per opposite party no.2 company is ready to replace the set but at this stage it is of no avail as the complainant had to purchase a new set to meet out his needs. It is also observed that opposite party no.1 & 3 had not appeared to rebut the version taken by the complainant in his complaint and were proceeded against exparte and as such it is presumed that opposite party no.1 & 3 have nothing to say in the matter. Therefore all the versions put forth by the complainant regarding manufacturing defect in the alleged mobile set stands proved. In this regard we have placed reliance upon the law cited in 1(2007) CPJ 120 titled Head Marketing and Communication Vs. Ankush Kapoor & Ors. whereby Hon’ble U.T. Commission, Chandigarh has held that: “Handset giving problems from day one/Defects could not be rectified inspite of being repaired twice-Undoubtedly, it suffered from inherent defects- Deficiency in service proved- Forum rightly ordered refund of cost of handset with interest”, as per 2008(1)CPC 52 titled Sony Ericsson India Ltd. Vs. Ashish Aggarwal, Hon’ble National Commission has held that: “Mobile purchased from OP had problem in key pad-New hand set after replacement also found to be faulty-State Commission directed refund of the money while OP insisted to offer replacement by new hand set-Refund of amount is justified as deficiency in service is writ large-Order upheld” and as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission, Mumbai has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law, which are fully applicable on the facts & circumstances of the case, the complainant is entitled for refund of price of mobile set. The handset in question is already with the opposite party no.2.
8. In view of the aforesaid findings and discussions, it is directed that the opposite party no.1 i.e. manufacturer shall refund the price of mobile set i.e. Rs.29500/-(Rupees twenty nine thousand five hundred only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 08.12.2014 till its actual realization and shall also pay a sum of Rs.1500/-(Rupees one thousand five hundred only) as litigation expenses to the complainant within one month from the date of order. Complaint is disposed of accordingly.
9. Copy of this order be supplied to both the parties free of costs and shall also sent to the opposite party no.1 & 3 through regd. post.
10. File be consigned to the record room after due compliance.
Announced in open court:
11.05.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
