Delhi

East Delhi

CC/428/2017

IMRAN KHAN - Complainant(s)

Versus

LENOVO INDIA - Opp.Party(s)

26 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.428/2017

 

	Sh. Imran Khan S/o Sh. Yusuf Khan R/o H.No.172, J. Extn., Laxmi Nagar, Delhi-110092	….Complainant
Versus
1	M/s. Lenovo India Pvt. Ltd. Head Office Address: Vatlka Business Park, 1st Floor, Badshahpur Road, Sector-49, Sohna Road, Gurgaon-122001	……OP1
2	M/s. Strength Service Pvt. Ltd.-CPT Through its Director/Manager WA-88, 1st Floor, Above ICICI Bank Shakarpur, Opp. Baba Balaknath Mandir, Delhi-110092	……OP2
3	M/s. AMAZON India / Green Mobile @ Amazon Through its Director/Manager Regd. Office: 8th Floor, 26/1, Dr. Raj Kumar Road Malleshwaram(W). Bangalore-560055 (Karnataka), India   Also At 369, Sarathy Arcade, 13th Cross Main Road, Banshankari, 2nd Stage, Bengaluru, Karnataka-560070	……OP3

 

Date of Institution	:	13.10.2017
Judgment Reserved on	:	25.04.2023
Judgment Passed on	:	26.04.2023

 

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Shri S.S. Malhotra (President)

 

JUDGMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant w.r.t. deficiency in service in selling the defective Mobile Phone to the complainant.
2. Brief facts as stated by the complainant in the complaint are that the complainant purchased a ‘Lenovo Mobile Phone Zuk Z1 dual SIM’ IEMI  No.865374022852993 and 865374022853009 online on  25.10.2016 of Rs.10,999/- from OP3 as manufactured by OP1 but the said Mobile Phone was not working properly and had a problem of hanging as well as w.r.t. no proper incoming of the calls, and as such the complaint was filed against OP2 on 28.11.2016 who repaired the same on same date but despite that the problem was persisting.  He again visited OP2 various times and even on 25.07.2017 but again respondent did not pay any heed towards the issue and made false excuses and as such he sent a legal notice on 17.08.2017 which was not complied with and ultimately the complainant filed the present claim thereby demanding from OPs:

• The opposite parties jointly and severally be directed to pay Rs.70,000/- as compensation for mental and physical harassment, Cost of the product and litigation expenses, loss of money spent on visiting to the opposite parties and un-comfort sustained by the complainant and recovery of interest, which was by the complainant to the Bajaj finance on the loan amount due to deficiency in service on the part of the opposite parties:
• The opposite parties jointly and severally to pay cost of the said defective mobile or replace the defective mobile with branch new one.
• The opposite parties to pay Rs.11,000/- jointly and severally to the complainant, as litigation charges.

3. An affidavit in support of complainant is attached. 
4. OP1 has filed its reply taking preliminary objection that complaint is not maintainable as there was no defect in the Mobile Phone of the complainant nor there was any deficiency in service on the part of OP1.  The allegations are after thought and have been made with the intention of gaining monetary advantage from the OP1.  The problem in the Mobile Phone was on account of faulty use and not on account of any manufacturing defect in the Mobile Phone. The touch chrome panel of the Mobile Phone of the complainant was found to be damaged which is a customer induced damage issue, on the date when it was brought to the service centre of OP1 and since it was observed that no defect can be attributed as a manufacturing defect the complaint is not maintainable.  It is further submitted as and when, the complaint is received by OP, in the first instance the Mobile Phone is required to be repaired only and it is only when the repair is not possible, then it may be replaced with one which at least is functionally equivalent and in the present case the service centre of the answering OP has rectified the problem by carrying out the software up-gradation, free of cost under warranty, as and when the same was brought and therefore complainant is not entitled to any refund. 
5. On merit the purchasing of Mobile Phone by the complainant is not denied however it is stated the complaint was lodged by the complainant on 28.11.2016, stated to have been rectified free of cost and it is further submitted that OP at all the times provided the necessary rectification and part replacement free of cost under warranty but when the complaint was made in 2016 the authorized service centre carried out the thorough diagnosis of the Mobile Phone and no fault was found in the Mobile Phone and as far as the incidence of 25.07.2017 is concerned it was diagnosed that touch chrome panel was damaged such damage does not fall in warranty and therefore the same was returned and it is accordingly prayed that complaint of the complainant be dismissed. 
6. OP2 has not filed any reply and was proceeded Ex-parte vide Order dated 29.05.2018.   
7. OP3 has filed its reply inter alia stating that OP3 is only a facilitator and provides free platform to the purchaser and seller and the complaint case against him is not maintainable in the various judgments and even otherwise the OP3 has not charged any service for using its platform from the complainant and therefore complaint is not a consumer of OP3 and the complaint of the complainant be dismissed against OP3.
8. The Complainant has filed his evidence and has exhibited the following documents:

• Copy of invoice of mobile is exhibited as EX.CW-1/A.
• Copies of Service Reports are exhibited as EX.CW-1/B.
• Copy of legal notice dated 17.08.2017 is exhibited as EX.CW-1/C.
• Copy of postal receipts dated 18.08.2017 is exhibited as EX.CW-1/D. 

9.   OP1 has filed evidence by affidavit of Sh. Shankara Narayanan Prakash, Technical Manager of OP1. 
10. OP3 has filed evidence of Sh. Rahul Sundaram, Senior Corporate Counsel, (Litigation) thereby reiterating and reconfirming the facts of their defense as mentioned in their respective reply. 
11. The Commission has heard the arguments and perused the record.  Admittedly, the Mobile Phone was purchased by the complainant in October, 2016 and the first complaint arose in November, 2016 itself.  As per OP1 the same was rectified and therefore there is no manufacturing defect. 
12. The Commission is not in agreement with the contention of OP1 when it submits that once a product has been sold then in case of any complaint it requires no replacement and only repairing would be done.  This per se is an unfair trade practice and particularly in the present case when the Mobile Phone has been purchased in October and within 30 days, it has developed some problem and that problem is not disputed by OP1 rather OP1 has submitted that it was rectified.  If the contention of OP1 is accepted that the product once sold would only be repaired even if it developed some snag within few days, then this submission amounts to straight away cheating the public at large by giving a faulty product to the customer first and then by saying that it would only be repaired even within a few days.  A person purchases a product with warranty and he at least assures himself that, since he has been given the one year warranty, by the seller, then the product would not bother him at least for one year and he cannot anticipate that just after having purchased a new product, he would be visiting the seller for the purpose of repairing the defective product.  In the present case the first defect appeared within a few days of having purchased. Even if this is written condition then it amounts to ‘an unfair trade practice’.  Therefore, the contention that it only would be repaired and would not be replaced, is not well found.  On this very ground the OP1 is liable to refund the amount to the complainant. 
13. The Commission is of the opinion that the OP1 has sold the faulty product to the complainant which developed snag within few days and has to be returned.  The contention of the OP1 that no manufacturing defect has been found in the product may be true to some extent but if the snag has been found within a few days i.e. Mobile was purchased on 25.10.2016 and the first complaint is on 28.11.2016 itself, then facts speak for themselves and in such cases no mechanical, or expert opinion would be required rather the submission of OPs is sufficient to prove the defect in the product.  Why a phone is required to be upgraded within a month or so of its purchase that by itself shows that there was manufacturing defect in the phone.         
14. Secondly, the second defect occurred in July, 2017.  The OP1 submits that it was not covering the warranty as it was a damaged touch screen.  Apart from saying that it was a damage of touch screen no other evidence has been filed by the OP1.  The contention that it was due to faulty use of the product is not tenable.  A person does not purchase a Mobile Phone to keep it in safe custody rather he would use it and what is the term ‘faulty use’ has not been explained by the OP1 at all. If it means that it is excessive use then it is of no consequence and if any other fact has been stated then it has to be proved.  There is no videography taken of this Mobile Phone at the time of taking possession of the Mobile Phone to prove that it was damaged.  Even it was so damaged, as alleged then to what extent is a fact which has to be shown/proved by OP1.  Mere saying that it has damaged or it is physically damage would not serve the purpose.  The OP1 was required to file the evidence of the person who examined it and who found that it was defective and then with the photographs/ videography of the damage, and the reason thereof as to why that damage has occurred, was to be proved by the OP1.  Admittedly, such opinion or the damage of OP has not been based on any technical observation.  Therefore, the OP1 has failed to prove that it was a physical damage and once it is not able to prove that fact, it may just amount to paper work that it was a physical damage or it was a faulty use.  Therefore, the contention of OP1 on both the scores is not tenable.  As far as OP3 is concerned, there is no evidence filed on the record as to how the complaint case is maintainable against OP3 as OP3 is neither a service provider to the complainant for consideration nor Complainant has leveled any allegation against OP3 w.r.t. having made any payment towards consideration to OP3.  Therefore, no case is made out against OP3.  As far as OP2 is concerned he is the service centre of OP1 and therefore he along with OP1 is jointly and severally liable.      
15. The Commission is accordingly of the opinion that complainant has been able to prove its case against OP1 and OP2 and has not been able to prove its case against OP3 w.r.t. deficiency in service. 
16. The Commission hereby orders the following:

• OP1 and OP2 to pay Rs.10,999/- jointly and severally with the interest @ 9% p.a. to the complainant, from the date of filing of the complaint i.e. 13.10.2017, towards the cost of Mobile Phone and complainant would return the phone in question to the OP1 and OP2 in writing. 
• OP1 and OP2 to pay Rs.3,000/- jointly and severally to the complainant, for mental and physical harassment including litigation charges.

This order be complied within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 26.04.2023.