BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.118 of 2017
Date of Instt. 26.04.2017
Date of Decision: 07.03.2018
Ashok Kumar Age 50 years, S/o Sh. Chaman Lal, H. No.B-3/675, Dilbag Colony, Goraya-144409, Tehsil Phillaur, District Jalandhar, Mob. No.9872866353.
..........Complainant Versus
1. Kewal & Co. Rurka Road, Goraya, Distt. Jalandhar Through its Prop/Partner/Authorized Representative.
2. HCL Service Ltd, Commercial Building, 399-L, 1st Floor, Model Town, Jalandhar Through its Director/Authorized Representative.
3. HTC Head Office, Apac Headquarters, HTC Towers No.41, GST Road Guindy, Chennai-600032, India. Through its MD/Director/Authorized Representative)
..….…Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: None for the complainant.
Sh. Atul Malhotra, Adv Counsel for the OP No.2.
OP No.1 and 3 exparte.
Order
Harvimal Dogra (Member)
1. The present complaint has been filed by the complainant under 'The Consumer Protection Act', 1986 against the OPs on the allegations of deficiency in service and unfair trade practice with the prayer that the OPs may be directed to replace the mobile handset with new one with fresh warranty and in the alternative to refund the cost of mobile handset as per bill with interest @ 12% per annum and further to pay the cost of litigation of Rs.3300/- and give a compensation of Rs.70,000/- for mental tension and harassment.
2. The case of the complainant in brief is that the complainant purchased a mobile handset on 26.03.2016, make HTC Desire, Model 728G bearing IMEI No.351879076176991 for Rs.15,500/-, vide Invoice No.12157 dated 26.03.2016 from OP No.1. That one year warranty was given by the OPs for the above said mobile handset. At the time of sale, the OP No.1 told and assured the complainant that in case of any problem or defect if arisen in the said handset, the same would be rectified immediately by their service centre located at Jalandhar or the handset would be replaced if the repair is not done. That within the warranty period, the above said mobile handset became out of order. The main defect was Auto Switch Off. The complainant went to OP No.2 on 22.09.2016 and handed over the defective phone handset who kept same with them for repair and issued a Job Sheet instead of proper repair the OP No.2 reset the mobile handset and returned to the complainant saying that the defect has been removed. On 22.10.2016, the mobile phone again gave problem and the complainant deposited the handset to OP No.2 after waiting for more than two hours. OP No.2 told the complainant that the phone is water damaged and cannot be repaired, whereas the fact is that the phone was neither water damaged nor water touched nor any kind of water entered in the mobile. It is pertinent to mention here that when the phone was given to OP No.2, there was only defect of “Auto Switch Off”. At the time of receipt of said mobile handset, the concerned employee of OP No.2 was gossiping with some other employee and instead of repair he was wasting the time in gossiping. When the complainant scolded him for not wasting the time and take proper care to repair the mobile handset, he became annoyed and carried the mobile handset in the workshop located at backside of service centre. After two hours, he came out and told the complainant that the phone is water damaged and cannot be repaired. This defect was made intentionally, deliberately and with malafide intention by OP No.2. The OP No.2 demanded Rs.9000/- from the complainant for rectifying the defect, which the complainant refused to give being under warranty period. The OP No.2 returned the handset to the complainant without repair and told the complainant that if the payment to the tune of Rs.9000/- is not given, then the mobile handset would not be repaired at any cost. That the non repair of the defective handset amounts to negligence and deficiency in service and the demand of Rs.9000/- amounts to unfair trade practice on the part of the OPs, hence the complainant filed the present complaint.
3. After formal admission of the complaint, notice was issued to the OPs, but despite service OP No.1 No.3 failed to appear and ultimately, OP No.1 and 3 were proceeded against exparte, whereas OP No.2 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable as the complainant has concealed the true and many facts. It is further averred that the complaint is totally false and malicious and has been filed after expiry of warranty time period so as to brow beat OPs and for extracting money under the duress of present complaint and further submitted that the complaint is silent about the working of the said mobile phone during the period from 22.10.2016. It is further submitted that the present complaint involves complex questions of facts and law. The present complaint requires elaborate evidence, expert evidence, examination and cross examination or witnesses etc. due to which the present complaint cannot be decided in a summary manner by this Hon'ble Forum. The remedy, if any, lies before the Civil Courts and further submitted that the defect if any arisen in the mobile phone was due to own negligence of complainant because the defect detected as per own admission of the complainant was water logging of the said phone. The warranty clause is very much clear that if there is water logging then OPs are not responsible for any defect or problem in the mobile phone. Moreover, the service job sheet also clearly mentioned the fact that if there is water logging in the mobile phone then OPs shall not be responsible and are not bound to repair the mobile phone free of charge under warranty. The moment any mobile phone is water logged there and then warranty cease to exist since all of mobile phones consist of an electronic card on which there are many circuits and open live electronic circuits and further submitted that the present complaint is vague, indefinite and does not mention any detailed or particular facts and as such, the same is liable to be dismissed. On merits, the factum in regard to purchase of mobile handset by the complainant from OP No.1 is not denied and it is also not denied by the OP that the complainant approached answering OP again on 22.10.2016 and handed over the mobile phone set to answering OP, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-3 and then closed the evidence.
5. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith documents Ex.OP2/1 to Ex.OP2/4 and closed the evidence.
6. We have heard the learned counsel for the OP No.2 and examined the entire material on record, but none has appeared on behalf of the complainant.
7. The facts regarding that the mobile phone was purchased by the complainant for Rs.15,500/- on 26.03.2016 from OP No.1, is not denied by the OP No.2. The Invoice Ex.C-1 is attached herewith. The main issue for consideration in the present case is, whether there is water logging in the mobile phone or not and secondly, whether there has been any deficiency in service on the part of the OPs. On 22.09.2016, the phone got a problem of Auto Switch Off. Job Sheet dated 22.09.2016, which is Ex.C-2 is attached. The problem reported in the said Job Sheet read as under “Battery drain out very fastly and phone switched off at 20% level of battery, sometimes the auto rotate do not work properly”. According to the complainant, the OP No.2 reset the mobile handset and returned the same to the complainant without proper repair.
8. On the other hand, the OPs alleged that the complainant approached them with minor problem in the handset and the mobile was updated and handed over to the complainant in working condition. On 22.10.2016, the complainant again approached OP No.2 with same defect. Job Sheet dated 22.10.2016, which is Ex.C-3 is attached on the file, the problem reported by the complainant is “Battery drain out very fast and Phone switch off” and the problem reported by the Engineer is “This phone is water damaged and its Indicator is Red. This will not be covered in warranty”.
9. The onus to prove that there is water logging or water damaged in the mobile phone is on OPs, but the OPs have miserably failed to produce any evidence to show that the phone was water logged. The OPs have failed to examine the Engineer, who has examined the mobile phone and stated this fact in the Job Sheet that the mobile is water damaged. In the absence of his evidence, there is no other expert evidence on the file. Now regarding with the problem of the battery drain off very fast and that phone switch off. This problem is not solved by OPs. They have failed to repair the mobile set and it seems that there must be some manufacturing defect which could not be rectified by the OPs and as such, the negligence and deficiency in service on the part of the OPs is proved.
10. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs be directed to replace the mobile handset with new one of same model and further directed to pay a compensation of Rs.3000/- and litigation expenses of Rs.2000/-. The entire compliance be made within one month from the date of receipt of the copy of order, failing which the OPs shall liable to pay an interest @ 9% per annum from the date of filing complaint, till realization. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
07.03.2018 Member President
