BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM : AMBALA
Complaint Case No. : 146 OF 2015
Date of Institution : 27-05-2015
Date of Decision : 04.08.2016
Pawan Kumar son of Sh. Raj Kumar, resident of H.No.804, Jogi Wara, Ambala City.
:::::::Complainant.
Versus
1. Maskeen Enterprises,Vishvakarma Road, Near Gurudwara Manzi Sahib, Ambala City.
2. Kiashphri 38, Mobitech Service Center, Ambala Cantt.
3. Jaina Marketing, D-170-173, Industrial Area, Phase-I, Okhla, New Delhi through its authorized signatory.
:::::::Opposite Parties.
Complaint Under Section 12 of the Consumer Protection Act.
CORAM: SH.A.K.SARDANA, PRESIDENT
SH. PUSHPENDER KUMAR, MEMBER
Present:- Complainant in person
Sh. Munish Kashyap, Adv. counsel for OP No. 1
OP No. 2 ex-parte
Sh. Mohit Tayal, Adv. for OP No.3
O R D E R
- Brief facts of the present complaint are that the complainant purchased one Karboon Mobile set bearing model No.5360 vide bill No.2240 dated 7-3-2015 from OP No.1 with the assurance of defect free set and will be replaced with new one in case of any default. After working for some time, the said mobile phone started giving problem of showing red colour so, the complainant reported the matter to OP No.1 who directed the complainant to report the matter to service center i.e. OP No.2 who got deposited the set from complainant and asked the complainant to come after 20 days. After 20 days, OP No.2 handed over the set to the complainant without any service and without removing defects as the set was giving no voice & switch off on its own and not working properly rather OP No.2 told the complainant that Mobile set fell into water and thus it can’t be replaced being out of warranty as water has entered in it. Thereafter the complainant requested many times to OPs to replace the Mobile set in question but they refused to replace/ repair the said mobile set which is a deficiency in service on the part of OPs. Hence, having no alternative, complainant preferred the present complaint seeking relief as mentioned in the prayer para.
- Notice of complaint was served upon the OPs but OP No.2 failed to appear before the forum inspite of service through regd. Post and thus he was proceeded against ex-parte vide order dated 22.7.2015. OP no. 1 & 3 appeared through counsels and OP No.3 submitted reply to complaint raising preliminary objections qua non maintainability of complaint , no technical expert report, no cause of action against the answering respondent and complainant has not come with clean hands and has suppressed the true & material facts, by misrepresenting & misinterpreting and making false allegations, the complaint of the complainant is baseless, barred by limitation, devoid of merits and this Hon’ble Forum has no territorial jurisdiction to entertain & adjudicate upon the present complaint. On merits, it has been urged that the complainant visited the service center on 26.3.2015 with dead handset whereupon the service center issued job-sheet in this regard after examining the hand set which revealed that charging of the battery was very low due to which the mobile was not working and by removing the said defect, OP No.2 returned the mobile set to the complainant in working condition. Thereafter complainant again visited the service center after 10/15 days and on examining the mobile set, it was found that due to liquid/water damaged, the set is out of warranty and thus no claim is made out against the answering respondent as per terms & conditions of warranty. In the end, OP No. 3 prayed for dismissal of complaint with costs whereas OP No.1 failed to file reply after availing several opportunities.
- To prove his version, complainant tendered his affidavit as Annexure C -X alongwith documents as Annexures C-1 & C-2 and closed his evidence whereas on the other hand, counsel for OP No. 3 tendered in evidence affidavit of one Charu Saini, as Annexure R-X alongwith documents as Annexure R-1 & R-2 and closed evidence on behalf of OP No.3.
- We have heard the learned counsels of the parties and gone through the case file minutely. The main grievance of the complainant is that he purchased a new Karboon mobile set with the assurance of proper functioning. After some time, the said mobile set started giving problem and failed to perform satisfactorily and the defects occurred in the set was not rectified by the OPs whereas OPs contention is that the water had gone in the set due to falling of Mobile and thus the set became out of warranty being water-logged.
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- At the very outset, it is crystal clear from the document Annexure R-1 i.e. ‘Limitation of Warranty coverage’ placed on record by OPs that ‘Defect or damage’ due to spills of flood, liquids or other substances’ is not covered under the limited clause and to prove the said fact, OPs have tendered affidavit of one Charu Saini, Prop. Of Mobiteck Service Centre as Annexure R X wherein it has been specifically averred that “ the mobile set of the complainant was out of warranty due to liquid /water damage and as such, the respondent No.2 did not entertain the said mobile phone under warranty condition and as such, there was no manufacturing defect in the mobile set of the complainant and as such, there is no liability on the part of the answering respondent as per the terms and conditions of the warranty card. Warranty terms and condition may kindly be read as part of this para”. As such, we have come to the conclusion that it is nowhere proved that the mobile in question was having any manufacturing defect/ inherent defect as alleged in the complaint since no any document or even report of any expert has been produced by the complainant to prove his contention. Hence, we have no hesitation in holding that OPs are not at fault as alleged rather complainant has miserably failed to prove his case and thus we have no option except to dismiss the present complaint. Accordingly, the present complaint is hereby dismissed with no order as to costs. A copy of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance.
Announced:04.08.2016 Sd/-
( A.K.SARDANA)
PRESIDENT
Sd/-
( PUSHPENDER KUMAR )
MEMBER
