Author: SHRI RABIDEB MUKHOPADHYAY, MEMBER
FINAL ORDER/JUDGEMENT
This is an application u/s.12 of the C.P. Act, 1986.
The Complainant stated that he paid Rs. 9999/- (cash) to buy a mobile phone of Lenovo, the OP-1, model no. Z2 Plus (Black 32 GB), IMEI 1no. 862168031822317, IMEI 2 862168031822325, Product no. PA 5000161IN through Flipkart being the OP-5 on 21.06.2017 andafter a few months of purchasing, the said mobile started technical difficulties (getting heated and hanging frequently).
He informed about the problems of said mobile phone to customer care of OP- 1. But the customer care assured him that excessive heating was not due to any manufacturing defect and further assured him that it will have no problem with the said mobile phone.
But after few days, the said mobile phone suddenly went off and despite of best efforts, it did not start. He rushed to authorized Service Centre (QDIGI Services Ltd.). He was asked to deposit the said mobile phone and come back after two hours. He deposited the said mobile phone and came back after two hours. At that time, he was told that said mobile phone had some minor software issues and those resolved the same by updating the software and in future, you have no problem in future.
But within few days same problems started to occur again. He sent his friend Sri Aniruddha Bhattacharya on his behalf to Service Centre. The Service Centre again asked Mr. Bhattacharya (Complainant’s friend) to deposit the said mobile phone and again asked him to come back after few hours. Mr. Bhattacharya deposited the said mobile and returned after a few hours. Accordingly after his return, Mr. Bhattacharya was told that the problem was nothing but a mere software issue which has been duly resolved. Mr. Bhattacharya was handed over the said mobile phone and was a made to sign on a receipt. But when Mr. Bhattacharya claimed for a receipt that they had repaired the said handset, as per their claim, they refused to do so and that they had no system of handing over receipts to the customer.
That in less than a monthtime the same problem reoccurred. He sent his friend (Mr. Aniruddha Bhattacharya) to said Service Centre and deposited the handset and after their backroom technicians went through the same he was asked to deposit the set with said Service Centre and also assured that he would get a phone call from them once the set was ready. The Complainant received a phone call on 4th of June, 2018 asking him to receive the set. The Complainant sent Mr. Bhattacharya and he signed the receipt and he was told atthat time that the problem was a major one and since the problem occurred within the warranty period they have replaced the PCB (Motherboard) and assured him about the permanent solution of the problem. When he asked for the receipt they refused to hand over the same but somehow he managed to click a picture which reflected the replacement of the PCB. But when the Complainant put the SIM Card in the said set he found that it was not receiving any network and was completely non-functional.
That being aggrieved the Complainant informed the matter to the OP-1 by his letter dated 13.06.2018. and requested the OP-1 that the said mobile being within warranty period to be replaced or else to refund him the money which he had paid. The OP till date has not replied to Complainant’s letter.
That by not replacing the said mobile phone or by not refunding the money the OPs are deficient in service.
The Complainant prayed for direction to replace the said mobile phone with a new one having the same features and also to pay Rs. 20,000/- as Compensation and Rs. 10,000/- as litigation cost.
Points for Discussion
1) Whether the Complainant is a Consumer under the O.Ps.
2) Whether the O.Ps. are deficient in rendering service to the Complainant;
3) Whether the complainant deserves relief.
Decision with Reasons
1) At the outset it is to be noted that on the basis of a petition/Misc. Application no. 285 of 2018 filed by the Complainant, OPs- 5 and 6 were expunged from the cause list of the Complaint vide order no. 07 dated 11.10.2018. Other OPs in spite of receiving summons did not turn up to contest the case and the case ran exparte against them vide order no. 6 dated 07.09.2018. So the Case is running exparte against OPs 1 to 4.
2)It appears from the Complaint that after few months of the purchase of the Phone, the device developed problem.The customer reportedly contacted the AuthorizedService Centre (OPs 3 and 4) and contacted several times with them. The phone set reportedly showed various defects like hanging, getting heated and lastly going out of order. Though the service centre initially reported that the problems were due to lack of updating of Software and they had updated the same but still the problems continued.
3) The Complainant reportedly being a busy professional, sent his friend Aniruddha Bhattacharya to OPs-3&4 on his behalf, who on their suggestion deposited the said set but the set was returned after few hours and Mr. Bhattacharya was told there was no problem. The OP-3 issued no receipt for the service.Subsequently, within less than a month’s time, the phone went off and could not be switched on. The authorized representative, Mr. Bhattacharya deposited the set to the service centre. He was told that a phone call would go to the purchaser, which came on 4thJune, 2018 asking him to receive the same. Mr. Bhattacharya being sent by the complainant was told that the problem being a major one took place within the warranty periodand they had replaced the PCB (motherboard)and assured him about the permanent solution of the problem.They did not issue any receipt but said Mr. Bhattacharya clicked a photo of the job sheet stating the problem of the phone and made ok against the IMEI/ Serial no. 862168031822317, signed by the said Bhattacharya and the engineer of the service centre with stamp (as per page 7, Annexure B of the complaint) and PCB was changed against the IMEI no. of the phone set vide the job sheet dated 04.06.2018, signed by said Bhattacharya and service centre vide page 8 (Annexure B).
But even after change of the PCB, when the Complainant put his SIM card, the phone received no network and the phone set became nonfunctional. This is why the Complainant stated the phone set to have some manufacturing defect.
4) The Complainant then sent letter through Speed Post vide complaint page 9, the Annexure-C, to OPs 1-3 on 13.06.2018 stating, inter alia, that as the handset was till then within warranty period the OPs must replace the said set and claimed a new set or refund of payment. In the B.N.A of the Complainant at para 6,confirmed with para 18 of the Affidavit in chief, we find that the OP Company had reportedly replied to the Complainant’s letter dated 13.06.2018 that they offered a free of cost of repair.
5) We find at para 17 of the Complaint that the OP-1 did not reply to the Complainant’s letter dated 13.06.2018.But legal adviser “Lexxlata”, Hyderabad on behalf of theOP Company replied vide reference no. LN/MP/Q1/18-19/025 dated 16 July,2018 responding as final reply to the Complainant’s legal notice, wherein it has been admitted that they received the notice on 21 June, 2017 and also they admitted servicing of the Complainant’s mobile as well as replacement of the PCB module. In the said reference, the legal notice assured the customer of rendering full assistance and cooperation of the same.
The Complainant demandedthat it was within the knowledge of the OP Company that the mobile phone set was defective.
6) We are not concerned about whether the mobile set had any manufacturing defect or not, because this should have been certified by an expert engineer, as per settled principle of law. But at the same time, it remains the fact that the mobile set was not functioning and not receiving the internet access on entry of the SIM Card, after so changing of the PCB by the Service Centre. The Lenovo make mobile phone has been of no use to the Complainant and this nonfunctioning of the mobile set happened some months after itspurchase, that is, within the warranty period. The Complainant paid for the mobile set but he is unable to get its utility. Therefore,the mobile set needs to be replaced.
7)Crores of people use mobile phones.Isit the common fact that after few months of purchase, the phones require updating and change of PCB? Possibly, it is not. This could be possible only when the mobile phone has really some inherent defects.In the instant case also, the mobile phone might have some defects as already discussed.Such defects had to be fully removed up to satisfaction of customer.
8) Admittedly, the OP Company received notice as clear from their legal adviser’s letterdated 16.07.2018 and also from this Forum Order no. 04 dated 30.07.2018. OPs-5 and 6 were expunged as already discussed above. The OPs- 1 to 4 did not file any Written Version nor did they attend the proceedings in any way and the affidavit in chief of the Complainant remained unchallenged. So, all the allegations of the Complainant are presumably true as there are no denials. It is the settled principle of law that when a party in spite of getting the opportunity to defend a case but does not do so, the party (here, OPs-1 to 4) are on the default side and the leverage of such fault goes to the advantage of the other party (here, the Complainant).
9) The Complainant purchased the mobile set against consideration of Rs.
9999/-. So, the aggrieved Complainant is a Consumer under the O.Ps. 1 to 4 in terms of section 2 (1) (d) (i) / (ii) of the C.P. Act, 1986.
The OPs 3 and 4, QDIGI acting as service wings of O.P.-1 and 2 failed to repair the mobile phone up to the satisfaction of the Complainant. The Complainant purchased the mobile set for his use but such service has been interrupted repeatedly even lastly non receiving of internet access even after change of the PCB and the OPscould not address the problem. So, the OPs are deficient in rendering proper service to the Complainant within warranty period of 1 year. They are deficient in terms of section 2 (1) (f)/ 2 (1) (g) read with section 2 (1) (o) of the Act.
As the Complainant has been deprived of the service of the mobile set and subjected to physical harassment and mental agony, he deserves some relief. But it also needs to be noted that he used the mobile phone within warranty period for some months before he reported for defects.
In the circumstances, we are of the considered view to pass
ORDER
That the Complaint be and the same is allowed exparte but on merit against the Opposite Parties 1 to 4,in terms of section13 (2) (b) (ii) as well as section 13 (2) (b) (i) of the C.P. Act, 1986;
That the Opposite Parties 1 to 4 are directed to jointly and severally repair the concerned mobile set to fully working condition and up to the full satisfaction of the Complainant within 30 days from the date of this Order;
OR,
To replace the defective mobile set with a new one of the equivalent price and model, within 30 days from the date of this Order and in that case, the Complainant has to pay to the O.Ps. 10 percent of the price (Rs. 1,000/-) of the new mobile set to be replaced, within 30 days from the date of this Order;
OR,
To refund the price of the mobile set (Rs. 9999/-) against deposit of the old one to the Complainant after deducting 10 percent (Rs. 1,000/-) of the same, i.e. to refund Rs. 8999/- within 30 days from the date of this Order;
(Option of O.Ps. 1 to 4 shall be final in this matter);
That the Opposite Parties1 to 4 are directed to jointly and severally pay Rs. 6,000/- as compensation for physical harassment and mental agony, and Rs. 4,000/- as litigation cost to the Complainant, within 30 days from the date of this Order;
That Non-compliance of any of above Orders by the Opposite Parties 1 to 4 within the stipulated time shall entitle the Complainant to put the Order into execution in terms of section 27 of the Act ibid.
Let copy of the judgement be handed over to the parties when applied for.
