Punjab

Ludhiana

CC/16/848

Saurabh Narula - Complainant(s)

Versus

Lenovo India Pvt.Ltd - Opp.Party(s)

Som Parkash ADv.

20 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 848 of 20.12.2016

   Date of Decision            :   20.11.2017

 

Saurabh Narula r/o H.No.276, St. No.7, New Azad Nagar, Bahader Ka Road, Ludhiana.

….. Complainant

Versus

                                                

1.Lenovo India Pvt. Ltd, through its authorized signatory, FERNS 1 Con, Level-2, Dodde Nakund, village Marathhalli Post, Kr. Puram Hobli, Bangalore-560037.

2.Lenovo Costumer Care Center, through its authorized signatory. Char Khamba Chowk, Model Town, Opp.Surya Tower, Ludhiana.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant               :         In person

For OPs                           :         Sh.Talwinder Singh, representative

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant Sh.Saurabh Narula, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) against the OPs by claiming that he purchased a Lenovo K3 Note on 20.8.2015, but the touch of the phone stopped working on 14.7.2016. Complainant located location of nearest service center and thereafter, visited Image Services AX-17, Model Town Ext. Opp.Andhra Bank for finding that service centre has been shifted to other location. Complainant called on the customer care No.180030007678 at 5:04 PM for asking them about the location of Lenovo Service centre. They disclosed the same address as was available in the Google Internet Search. Complainant was disclosed that he can visit  another service centre located in Surya Tower, National Road, Ghumar    Mandi, Ludhiana. Complainant got the token and visited the executive for knowing that service centre has been shifted from there. Thereafter, complainant got the third address of service centre near Char Khamba Chowk, Model Town(i.e. OP2). Complainant after getting token, waited for his turn and finally disclosed the representative of Ops as if touch of the phone is not working. That representative checked the phone for disclosing the complainant as if there is some liquid therein. However, complainant claimed that as phone is in his exclusive use and as such, liquid problem cannot happen. Complainant was disclosed as if he may have touched the phone with wet hands. Even complainant was disclosed that damage to the phone will not occur immediately on entry of the water in the phone. That representative disclosed the complainant as if he can repair the phone, but subject to payment of Rs.6000/- as repair charges. This demand put forth, despite the fact that Lenovo Phone had one year warranty. Complainant failed to get positive result, despite numerous requests and visits to the service centre. Mobile phone of the complainant remained out of order during period from 17.7.2016 to 24.7.2016, as a result of which, he suffered heavy loss in business. After being frustrated by the activity of officials of Op company, complainant got his phone repaired from a shop in the local market. The said shopkeeper changed the display and touch and formatted the same. It is claimed that now mobile is working properly. The person who repaired the phone was of the opinion that there was no liquid damage in the phone and as such, there was no need for change of the mother board. Defect in the mobile phone was rectified after charging Rs.1800/- from the complainant by the said shopkeeper. Thereafter, complainant served a legal notice dated 27.7.2016 upon Ops, but to no effect. By claiming that Ops have provided deficient services and adopted unfair trade practice resulting in mental agony and harassment of complainant, prayer made for directing Ops to refund the sale price of the mobile phone along with other expenses. Compensation for mental harassment and agony of Rs.50,000/- along with cost of complaint even claimed.

2.                 In joint written statement filed by OPs, it is claimed that they always remained willing to provide the requisite services under the warranty as per the statement of the Lenovo warranty. It is claimed that when the complainant contacted the authorized service provider of Ops and handed over the Smart phone in question, then it was diagnosed as if there was liquid spill resulting in physical damage to the phone. The damage identified as the customer induced damage. That damage was not covered under the warranty terms and the said fact was communicated to the complainant. The engineer explained the complainant that smart phone will not be repaired because of above referred physical damage caused to it. However, services were offered to be provided on chargeable basis, but the complainant denied said offer and got back the delivery of the phone in question. In view of this, it is claimed that there is no deficiency in service on the part of Ops. As complainant himself mishandled the smart phone resulting in liquid spill and as such, as per terms and conditions of warranty, free of cost services cannot be provided. Warranty does not cover the damage result from the misuse, abuse, accident, modification, unsuitable physical or operating environment, natural disaster, power surges, improper maintenance or use not in accordance with the product information materials. It is claimed that on receipt of complaint, Op as a manufacturer, arranged to contact the complainant through their representative for negotiating the issue amicably. Offer was given for extending the warranty by three months. That bonafide offer was not accepted by the complainant for the reasons best known to him. Other averments of the complaint denied.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C9 through counsel and thereafter, closed the evidence, but by tendering affidavit Ex.CB of Sh.Darshan Singh and another document Ex.C10.

4.                 On the other hand, Sh.Talwinder Singh, representative of OP1 and Op2 tendered in evidence affidavits Ex.RA and Ex.RB of Mr.Shankaru Narayanan, Technical Manager of Ops as well as of himself along with document Ex.R1 and thereafter, closed the evidence.

5.                 Written arguments not submitted by any of the parties. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                 It is vehemently contended by complainant that defect in the mobile phone in question took place within the warranty period, but the same was not removed, despite email correspondences placed on record as Ex.C2 to Ex.C6 and as such, Ops provided deficient services. It is contended that despite service of legal notice Ex.C8 through postal receipt Ex.C9, defect in the mobile phone not rectified as per terms and conditions of the warranty Ex.C7 and that is why, mobile phone in question got repaired from Sh.Darshan Singh having shop in Anand Nagar, Badi Haibowal, Ludhiana on payment of Rs.1800/-. As the defect in the mobile phone was not on account of liquid damage as per opinion of said Sh.Darshan Singh, who repaired the mobile and as such, it is vehemently contended that deficient services provided by Ops to the complainant resulting in unnecessary harassment of complainant. However, representative of Ops vehemently contends that damage to the mobile phone in question took place due to liquid spill and as such, owing to physical damage caused to the mobile on account of negligence by the complainant, free of cost service cannot be rendered. After considering the pros and cons of rival contention of complainant and counsel for the Ops, it is found that fault actually lay with Ops in not rendering the due service, free of cost for rectifying the defect that surfaced within the warranty period.

7.                 The mobile phone in question was purchased by the complainant through invoice Ex.C1 on 20.8.2015 is an undisputed fact. The defect in the mobile surfaced for the first time on 14.7.2016, when the touch of the phone stopped working and that is why, complainant approached OP2 after searching the location, but despite that defect not removed by OP2, a representative of OP1 until the demanded amount paid. Free of cost service refused on the ground that there was liquid spill in the mobile resulting in physical damage to it. However, proof of physical damage to the mobile phone by liquid spill is not at all adduced by Ops by examining the person, who found   such liquid spill damage to the phone. However, complainant has produced affidavit Ex.CB of Sh.Darshan Singh, who repaired the mobile phone in question for establishing that said repairer did not found any liquid damage  to the mobile phone of the complainant. Contents of Affidavit Ex.CB of said Sh.Darshan Singh undoubtedly establishes that there was no need of change of mother board of the phone because there was no liquid damage in the mobile phone of the complainant. Rather, said Sh.Darshan Singh claimed through affidavit Ex.CB that he changed the display and touch of the mobile and thereafter, formatted the same, due to which, phone started working properly. Even complainant in course of arguments, admitted that now the mobile phone is working properly till date. As evidence of expert examined by the complainant establishes that damage to the mobile was not caused due to liquid spill, but no expert report in rebuttal produced by Ops and as such, case of complainant is fully believable that damage to the mobile in question was not caused due to liquid spill, but on account of some other problem.

8.                 Problem in the mobile occurred for the first time after 10 months of its purchase and as such, certainly manufacturing defect in the mobile is not there. Moreover, the mobile phone is now working smoothly/properly since after its repair by Sh.Darshan Singh on 23/24.7.2016 is admitted by complainant and as such, these circumstances enough to hold that replacement of the mobile must not be ordered, otherwise same will give undue benefit to the complainant over Ops. That will amount to unjust enrichment of complainant, which cannot be permitted by law and as such in view of the fact that Ops failed to rectify the defect in the mobile, free of cost within the warranty period, it is ordered that Ops will refund the paid amount of Rs.1800/- by the complainant to Sh.Darshan Singh with interest @6% per annum w.e.f.25.7.2016 till payment. Affidavits Ex.RA and Ex.RB tendered by representative of Ops in short format for referring as if contents of accompanying written statement are correct. Such affidavits are no affidavits in the eyes of law because as and when evidence through affidavit to be submitted, then deponent must disclose as to which facts contained in the affidavit are true and correct to his personal knowledge and as to contents of which part are true to his belief. That distinction is not made out in affidavits Ex.RA and Ex.RB and as such, those affidavits cannot  at all be taken into consideration, particularly when report of expert, who examined the mobile of the complainant at the service centre, has not been tendered. So,virtually an incorrect plea has been taken regarding damage to the mobile phone in question due to liquid spill and as such, complainant is entitled to compensation for mental harassment and agony of Rs.3000/- at least along with litigation expenses of Rs.2000/-.

9.                 Therefore, as a sequel of the above discussion, complaint allowed in terms that Ops will refund the paid amount of Rs.1800/-(Rupees one thousand eight hundred only) by complainant for repair with interest @6% per annum w.e.f.25.7.2016 till payment. Compensation for mental harassment and agony of Rs.3000/-(Rupees three thousand only) and litigation expenses of Rs.2000/-(Rupees two thousand only) more will be paid by Ops to the complainant within 30 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules.

10.                         File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                     (G.K.Dhir)

 Member                                                              President

Announced in Open Forum

Dated:20.11.2017

Gurpreet Sharma.