Sh.Anoop Sharma, Presiding Member.
Present complaint has been filed by Sh.Amit Khanna, under the provisions of the Consumer Protection Act alleging therein that purchased a mobile set from Opposite Party No. 2 being manufacturer/ marketed by Opposite Party No. 2 and the Opposite Party No.1 being the service/ warranty provider, vide invoice dated 1.3.2016 for a sum of Rs.9499/- having warranty of one year. From the very first date, the Mobile Set in dispute was having manufacturing inherent defects and was not giving the proper service and was having the network loosing and hanging problem with low battery and display problem and the complains to the said effect were made to Opposite Party No.1 and Opposite Party No.1 changed the components many times. Said Mobile Set after few months started giving the same trouble of hanging and network loosing and display problem and the complainant made complaints to the Opposite Parties, but they tried to rectify the defect, but could not set right the Mobile Set in question and the Opposite Party No.1 has kept the said Mobile Set with it since 13.5.2016 and has not returned the same till the filing of the present complaint inspite of the repeated requests and visits. Vide instant complaint, the complainant has sought the following reliefs:-
- Opposite Parties be directed to rectify the Mobile Set in question and in case is not repairable replace with the same make or equivalent make or model of Mobile Set or in alternative refund Rs.9499/- alongwith interest @ 12% per annum thereon from the date of payment till realization.
- Opposite Parties may be directed to pay the compensation of Rs.25,000/- to the complainant.
- Opposite Parties may be directed to pay the adequate cost of the present litigation.
- Any other relief to which the complainant is found under the law, equity and justice be also allowed.
Hence, this complaint.
2. Upon notice, none appeared on behalf of Opposite Party No.1, hence Opposite Party No.1 was proceeded against exparte vide order of this Forum.
3. Opposite Party No. 2 appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complaint is not maintainable; that the present complaint filed by the complainant without any technical report; that the complainant has not come to this Forum with clean hands and has suppressed the true and hard facts. Earlier, the complainant also filed complaint before this Forum and the same was dismissed in default for want of prosecution. It is submitted that on the complaint of the complainant, the engineer of the Opposite Party checked the unit properly and resolved the issue and the complainant after being fully satisfied took the delivery of unit. But still, the Opposite Party was and is still ready to provide the service to the complainant as per the conditions of the warranty. The company provides one year warranty on the unit warranty means in case of any problem with the unit, the unit will be repaired or its part will be replaced as per the company policy, subject to some condition and the warranty of the units becomes void in the following conditions i.e. Liquid lodged/ water logging, physically damage,, serial number missing, tempering, mishandling/ burnt etc. The present complaint is filed without any expert opinion which will prove that the unit is not working properly and merely by the oral version of the complainant it can not be ascertain hat the unit is not working properly, the alleged unit in question is required to be checked up by the proper analysis/ test by the appropriate laboratory. Hence, no question of giving any replacement, refund, compensation or any other relief to the complainant arises. On merits, Opposite Party No. 2 took up the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
4. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C7 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, the Opposite Party No. 2 tendered into evidence the affidavit of Sh.Ankit Aggarwal Ex.OP2/1 alongwith copies of documents Ex.OP2/2 to Ex.OP2/3 and closed the evidence on behalf of Opposite Party No. 2.
6. We have heard the ld.counsel for the complainant and ld.counsel for Opposite Party No. 2 and have carefully gone through the evidence on record.
7. Ld.counsel for the complainant has reiterated the facts as detailed in the complaint and argued that the complainant purchased Mobile Set in dispute vide invoice dated 1.3.2016 for a sum of Rs.9499/- having warranty of one year. From the very first date, the Mobile Set in dispute was having manufacturing inherent defects and was not giving the proper service and was having the network loosing and hanging problem with low battery and display problem and the complains to the said effect were made to Opposite Party No.1 and Opposite Party No.1 changed the components many times. Said Mobile Set after few months started giving the same trouble of hanging and network loosing and display problem and the complainant made complaints to the Opposite Parties, but they tried to rectify the defect, but could not set right the Mobile Set in question and the Opposite Party No.1 has kept the said Mobile Set with it since 13.5.2016 and has not returned the same till the filing of the present complaint inspite of the repeated requests and visits. The aforesaid act of the Opposite Parties of not listening the genuine and legitimate request of the complainant is quite illegal, unwarranted and unsustainable.
8. On the other hand, ld.counsel for Opposite Party No. 2 has specifically repelled the aforesaid contentions of the complainant on the ground that on the complaint of the complainant, the engineer of the Opposite Party checked the unit properly and resolved the issue and the complainant after being fully satisfied took the delivery of unit. But still, the Opposite Party was and is still ready to provide the service to the complainant as per the conditions of the warranty. The company provides one year warranty on the unit warranty means in case of any problem with the unit, the unit will be repaired or its part will be replaced as per the company policy, subject to some condition and the warranty of the units becomes void in the following conditions i.e. Liquid lodged/ water logging, physically damage,, serial number missing, tempering, mishandling/ burnt etc. The present complaint is filed without any expert opinion which will prove that the unit is not working properly and merely by the oral version of the complainant it can not be ascertain hat the unit is not working properly, the alleged unit in question is required to be checked up by the proper analysis/ test by the appropriate laboratory. Hence, no question of giving any replacement, refund, compensation or any other relief to the complainant arises. Sale of the Mobile Set in dispute to the complainant vide invoice dated 1.3.2016 is not disputed. It is also not disputed the as and when the complainant visited the Opposite Parties, they immediately, removed the defects in the Mobile Set immediately. Main contention of the Opposite Party No. 2 is that company provides one year warranty on the unit warranty means in case of any problem with the unit, the unit will be repaired or its part will be replaced as per the company policy, subject to some condition and the warranty of the units becomes void in the following conditions i.e. Liquid lodged/ water logging, physically damage,, serial number missing, tempering, mishandling/ burnt etc. The present complaint is filed without any expert opinion which will prove that the unit is not working properly, but the complainant has not produced any expert report that the Mobile Set in dispute is having some inherent defect. It is not disputed that the Mobile Set in dispute started giving problem within warranty period of one year. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount. Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost. In the instant case, the Mobile Set in question started giving troubles within warranty period. The engineer of the Opposite Parties tried to remove its defect, but always the Mobile Set in dispute remained stopped and as per the version of the complainant, the Mobile Set in question is still lying with Opposite Party No.1 since 13.5.2016 and they have not returned the same till the filing of the present complaint inspite of the repeated requests and visits. So, in such a situation, we direct Opposite Parties No.1 and 2 jointly and severally, to replace the Mobile Set in dispute with new one of same make and model with fresh warranty without charging any amount, within 15 days from the date of receipt of copy of this order or in alternative refund 90% price value of the new model of Mobile Set in dispute to the complainant. Opposite Parties are also directed to pay Rs.2,000/- to the complainant on account of compensation, besides Rs.1,000/- as costs of litigation. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
