Punjab

Faridkot

CC/17/317

Sumit Kumar - Complainant(s)

Versus

Maheshwari Medical Hall - Opp.Party(s)

Amit Gupta

22 Jan 2019

ORDER

          DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :           260 of  2017

Date of Institution :      14.08.2017

Date of Decision :        21.01.2019

Harbhajan Singh Bhalla aged about 82 years, son of Sh Piara Singh r/o House No.457, Street No. 9 (L), Balbir Avenue, Faridkot.

.....Complainant

Versus

1. North India Top Company (P) Ltd c/o Acorn Warehouse & Logistic Park 68, Village-Kapriwas & Malpura TaluQ-Dharuhera District Rewari, Haryana, 123106.
2. Xolo Head Office, A-56, Sector 64, Noida, 201301, U P through its Managing Director.
3. Xolo/ Lava Care Services Centre, Shop No.83, Nehru Shopping Centre, Faridkot through Proprietor/authorized person.
4. Home Shop 18, (On Line), D-5, 2^nd Floor, Logix Infotech Park, Sec-59, Noida.

 Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

 

Quorum: Sh. Ajit Aggarwal, President,

                Smt Param Pal Kaur, Member.

 

Present: Sh Harbhajan Singh Bhalla/ Complainant in person,

             Sh Manjit Sodhi, Ld Counsel for OP-2 & 3,

              OP-1 and OP-4 Exparte.

 

ORDER

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to replace the defective mobile with new one or to refund the cost of said

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mobile phone and for further directing OPs to pay Rs.40,000/-as compensation for harassment and mental tension suffered by complainant alongwith litigation expenses of Rs.8,000/-.

   2                                Briefly stated, the case of the complainant is that on assurance of OPs through their attractive advertisements, complainant purchased one mobile handset Make XOLO 12.7 cm 4 G Android from OPs through online mode against bill dated 14.09.2016 for Rs.5150/- and complainant paid the amount of Rs.5150/-in cash on receiving the delivery of said mobile phone at Faridkot. It is submitted that mobile phone in question bears warrantee for one year against all kind of risks covering damage to screen, theft, clarity in voice and internet etc, but since the day of purchase, this mobile is giving trouble and just after two months of purchase, it used to get on or off automatically without any command and sometimes stopped functioning and occurs in hanging mode. Complainant reported the entire matter to OP-3 who is service centre for repairing mobile phones of OPs, but he paid no heed in repairing the same. Complainant also reported the matter to OP-2 by making calls on their customer care number but they also did not redress his grievance. After that internet speed of said phone also became slow to which OP-2 told complainant that many users use internet in India and due to this speed of internet gets slow down. Thereafter, persisted a problem in sound system of mobile phone in question and first week of February 2017, its screen became totally black. Complainant again and again approached OP-3 service centre of OP-2 with requests to them to repair the phone in question but all in vain. Now, this mobile has become totally out of order as its display is also not working and does not show any number over it. Repeated requests made by complainant before OPs, bore no fruit. OPs have sold defective mobile set having inherent manufacturing

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defect in it to him in the garb of new one, which amounts to deficiency in service and trade mal practice on their part. Complainant has suffered great harassment and mental agony due to this act of OPs and has prayed for accepting the present complaint alongwith compensation and litigation expenses besides main relief.

3                                                   Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.08.2017, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                        On receipt of notice, OP-2 and OP-3 filed reply taking preliminary objections that there is no deficiency in service on the part of answering OPs and therefore, complaint in hand is not maintainable and is liable to be dismissed. It is asserted that complainant has not come to the Forum with clean hands and has concealed the material facts from this Forum. He has no locus standi to file the present complaint and no cause of action arises against them. It is further averred that it is filed without any technical support and there is no defect in this mobile. It is further submitted that OP-1 is a renowned company in India and alongwith other products is engaged in business of manufacturing mobiles and its sales. On a single time, thousands of mobiles are manufactured and if there is any manufacturing defect during manufacturing of same, then, same will occur in entire lot and till now, they have not received even a single complaint for mobiles manufactured by them of same lot. It is further averred that OP Company has an online system to enter all claims/ complaints vide call number, serial number in each and every case, but as per their own record detail, no detail is found in online system of company for the present complaint. Complainant never approached OPs meaning thereby that there is no problem in said unit and complainant has filed this

cc no.-260 of  2017

present complaint  just to taken illegal benefits. It is asserted that company provides warranty for one year but warranty is subject to some conditions and warranty becomes void in cases of liquid logged/water logging, physical damage; serial number missing, tampering; mishandling, burning etc. However, on merits OP-2 and OP-3 have denied all the allegations of complainant being wrong and incorrect and stressed mainly on the point that complainant never approached their service centre nor lodged any complaint with them regarding mobile in question and there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

5                                         Registered cover containing copy of complaint alongwith summons was sent to OP-1 and 4, but same did not receive back in the Forum undelivered. Acknowledgment might have mislaid in transit. Op-1 and 4 might have been duly served, but nobody appeared in the Forum on date fixed either in person or through counsel on their behalf to contest the complaint filed against them and therefore vide order dated 9.10.2017, OP-1 and OP-4 were proceeded against exparte.

6                                                        Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence affidavit of complainant as Ex C-1and documents Ex C-2 to C-4 and then, closed the evidence.

7                                                             In order to rebut the evidence of the complainant, Counsel for OP-2 and 3 tendered in evidence affidavit of Ankit Aggarwal Ex OP-2, 3/1 and documents Ex OP-2,3/2 to OP-2,3/4 and then, closed the same.

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8                                                                We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                                    The case of the complainant is that he purchased a mobile phone worth Rs.5,150/-from OPs against a proper bill dated 14.09.2017 through online mode and made cash payment on receiving the said phone at Faridkot. Since the day of purchase, mobile phone in question started giving problem. It used to get on or off without any command and enters the hanging mode. Display was also not working properly and its functioning was very slow. Complainant constantly approached and reported the entire matter to OPs at their service centre as well  as through their customer care number. Complainant made several requests to Ops to redress his grievance by replacing the said defective mobile phone, but OPs paid no heed to his genuine requests. He has prayed for accepting the complaint and stressed on documents Ex C-1 to 4. Grievance of complainant is that since the day of purchase of mobile phone in question , he has been repeatedly approaching OPs with requests to repair or replace the said phone but all in vain as OPs are not paying any heed to listen to his genuine requests, which amounts to deficiency in service. To controvert the allegations of complainant, Ld Counsel for OP-2 and OP-3 have denied all the allegations of complainant being wrong and incorrect and stressed mainly on the point that complainant has never approached them pertaining to any problem in his mobile phone. As per OP-2 and 3 there is not defect in said mobile. Allegations of manufacturing defect in said phone levelled by complainant is also without any technical  support or any documentary evidence. It is reiterated that complainant never brought his mobile to their service centre for repair. There is no defect in the

cc no.-260 of  2017

mobile phone manufactured by them and they have not received any complaint regarding any defect in said units. It is reiterated that there is no deficiency in service on the part of OP-2 and OP-3 and prayed for dismissal of complaint with costs.

10                                       It is observed that there is no denial to the fact that complainant purchased mobile handset in question from OP-1 on 14.09.2016, which was manufactured by OP-2 and there was one year warranty for any defect in the said mobile handset. Complainant approached Ops several times to get the same repaired, but despite repeated requests, service centre of OPs did not provide effective repairs up to the satisfaction of complainant and thereafter, when complainant made requests to Ops through their customer care number, Ops did not pay any heed to make any repairs to said mobile, which amounts to deficiency in service. Defects could not be removed by Ops even during the warranty period and now, they did not hear the genuine requests of complainant for repairing the mobile in question. OPs did not provide proper and sufficient services to complainant by doing effective repairs. OP-3 being authorized service care centre on behalf of OP-2 and Op-2 who is the manufacturer of said mobile phones did not bother to redress the grievance of complainant. OPs has neither provided requisite services by making effective repairs nor have bothered to replace the defective mobile set, which amounts to deficiency in service.

11                                         From the above discussion, we are of considered opinion that OPs No. 2 and 3 are liable for deficiency in service and have caused huge harassment and mental agony to complainant. Hence, present complaint is hereby allowed. OPs are directed to replace the mobile handset of complainant

cc no.-260 of  2017

with new one of same model. Complainant is also directed to return the old handset to OPs at the time of receiving the new one. OP-2 and 3 are further directed to pay Rs.1,000/- to complainant as compensation for harassment and mental agony suffered by him besides Rs.1500/-for cost of litigation. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Complaint against OP-1 and OP-4 stands hereby dismissed as they have no role in redressal of grievance of complainant. Copy of the order be supplied to parties free of cost as per law. File be consigned to record room.

Announced in open Forum

Dated: 21.01.2019

 

(Param Pal Kaur)            (Ajit Aggarwal)

Member                          President