Orissa

Cuttak

CC/92/2019

Gajanana Behera - Complainant(s)

Versus

Managing Director,Xiaomi India - Opp.Party(s)

P Lenka

06 May 2022

ORDER

IN THE COURT OF THE DIST. COINSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                C.C.No.92/2019

           Gajanana Behera,

S/O:Late Golekha Behera,

At:Gadeikuda,Via/P.O/P.S/Tahsil-Barang,

Dist:Cuttack.Odisha,Pin-754005.                                                     ... Complainant.

 

                                                Vrs.

1.        The Managing Director,

Xiaomi India,AT:Indiqaube,

1^st Floor,Marathahalli O’RR,Kadubesanahalli,Bangalore South,

Post-Panathur B.O,Dist:Bengaluru,Karnataka.Pin-560103.

 

2.        Proprietor,SAI SOLUTION,

1^st Floor,Room No.129/130,Big Bazar,

NSB Arcade,P.O:Buxibazar,P.S:Dagha Bazar,

Town/Dist:Cuttack-753012.

 

3.         MANOJ ELECTRONICS GSTIN-21AYOPS8312H1Z9,

At:Dadhapatna,P.O/P.S:Barang,Dist:Cuttack(Odisha),

Pin-754005 represented by its Proprietor

Dillip Kumar Sahoo.... Opp. Parties.

 

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    13.08.2019

Date of Order:  06.05.2022

 

For the complainant:          Mr.P.Lenka,Adv. & Associates.

For the O.P.No.1:                Mr. Om Swaroop,Adv. & Associates.

For the O.P No.2 & 3:                     None.

 

Sri Debasish Nayak,President.

            The case record is put up today for orders

Case of the complainant as made out from the complaint petition in short is that he had purchased a mobile phone Redme Note-5-IN-2GB+16GB-Black bearing Sl. No.17614/80095882, IMEI(MEID) No.865498037119765 & 865498037119773  on 2.10.18 with payment of Rs.8000/- from Dadhapatna of Baranga in the District of Cuttack.  As per the warranty card of the said mobile phone set, there was warranty for one year.  Six months after purchase, the mobile phone of the complainant suffered from problems like flickering of the screen for which he had contacted the O.P No.3 who is the dealer and from whom he had purchased the said mobile suggested the complainant to meet O.P No.2, the authorised service centre.  On 11.4.19 the complainant had gone to O.P No.2 and O.P No.2 had charged illegally a sum of Rs.2771/- for repairing the said mobile set of the complainant, even though the mobile set was under warranty period.  The complainant has filed the said money receipt and the service report as given to him by O.P No.2 dt.11.4.19.  In the month of July,2019 again the complainant found no “Net work signal” in his mobile set. In a similar way the complainant met O.P No;3 who advised him to meet O.P No.2 but O.P No.2 when approached, refused to repair the defective mobile set of the complainant free of cost  even though the warranty period was persisting, rather, demanded the repairing cost of Rs.3892/-.  When the complainant refused to pay the same, O.P No.2 returned the mobile set of the complainant without repairing the same.  It is for this; the complainant represented to O.P No.1 but could not get any satisfactory reply.  According to the complainant, the hand set purchased by him from O.P No.2 suffers from manufacturing defect and was to be repaired being under the coverage of warranty period.  The complainant thus had sent a legal notice under registered post with acknowledgement due to the O.Ps  on 23.7.19 and when they had not taken any remedial action, the complainant has approached this Commission praying to compensate him for the said defective mobile set to the tune of Rs.30,000/- with interest @ 18% per annum and replacement of the defective mobile hand set with a new one alongwith any other relief as found to be fit and proper.

2.         On the other hand, O.P No.1 has contested this case and has filed written version, but,O.Ps No.2 & 3 have not contested this case for which they have been set exparte.

            O.P No.1 admits in which written version that O.P No.2 is the authorised service centre and O.P No.3 is the product seller.  It is admitted by O.P No.1 that the complainant had purchased Mi brand REDME mobile set for a consideration of Rs.8000/- having IMEI No.865498037119765 & 865498037119773.  It is also not disputed that on 11.4.19 the complainant had approached the authorised service centre(O.P No.2) as the screen of the said mobile set was flickering.  According to O.P No.1, O.P No.2 had repaired the defective mobile set of the complainant and had charged as was to be levied for the said repair.   The service job sheet No.WXIN1904110001002 was generated accordingly.  On 18.7.19 the complainant again approached O.P No.2 as there was problem relating to “3G/4G no signal”.  The complainant was duly informed about the incurring charge for the said repair but when the complainant refused to pay the repair cost, O.P No.2 had to return the mobile set to the complainant without repair.  According to O.P.No.1, if the mobile set is exposed to water/liquid then the damage sustained thereby is out of the warranty as per the terms and conditions of warranty of the said device which is available in the website of O.P No.1.  According to O.P No.1 the mobile set of the complainant was exposed to water/liquid which was detected through Liquid Damage Indicator Test. It was therefore not to covered under the warranty as demanded by the complainant.  The O.P No.1 has relied upon a decision In Royal Enfield Motors Ltd. V. Kulwant Singh Chauhan,(2011) 4 CPR 208,  case, wherein, it is held that: “it was the duty of the complainant to establish his case that the motorcycle was suffering with any sort of manufacturing defect.”  He also relied on another decision in Classic Automobiles V. Lila Nand Mishra & Ors; I(2010) CPJ 235 (NC), where in it is held that “Onus to prove manufacturing defect lies on the complainant.  No expert evidence produced to prove manufacturing defect in vehicle.  Alleged defects cannot be termed as manufacturing defect.  Vehicle repeatedly brought to service station for repairs, no ground to hold that the vehicle suffering from manufacturing defects”.    The O.P No.1 has also filed another decision of Hon’ble Supreme Court of India in (Maruti Udyog Ltd. V. Susheel Kumar Gabgotra,(2006) 4 SCC 644 at para-10 & 11 where a warranty condition is specifically stated, contrary implied warranty cannot be imputed. Complainant clearly and specifically exclude any warranty for customer induced damage (such as liquid damage caused due to exposure to water) to the product.  In another decision filed by O.P No.1 i.e. Bharathi Knitting V. D.H.L Worldwide Express Courier,(1996) 4 SCC 704, the Hon’ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract.  In a matter with similar facts before the State Consumer Disputes Redressal Commission,Punjab,Chandigarh (Vipan Kumar vs. M/s. Flextronics Technology) the State Forum held that “ the terms and conditions of warranty are the basic part of the contract, as and when any product is purchased from the market.  The seller is bound to issue the warranty under Sale of Goods Act and even Section 14 of Sale of Goods Act gives implied warranty for quality of any product by the seller.  Undoubtedly, the mobile set was within the warranty period, but certain terms and conditions have been laid down, to be complied with by the buyer, for invoking the warranty.  If any fault has developed in the product, not due to the manufacturing defect, but an account of own negligence in its handling by consumer, then it will not be covered under the warranty terms and conditions.  The District Forum has, thus, correctly reached the conclusion in this case and rightly held the complainant to be entitled to no relief.”  Likewise, in a matter before the Hon’ble District Consumer Redressal Forum, Panchkula(Namish Gupta V. Xiaomi Technology India Pvt. Ltd., Consumer Complaint No.113 of 2015), the complainant approached the Hon’ble Forum seeking full refund for the damaged screen of his mobile device.  Since the warranty conditions associated with the mobile handset specifically excluded screen damage from the scope of warranty, the Hon’ble Forum accordingly inter alia held in para-8 “it is worthwhile to mention here that the legislation of the C.P.Act is generous in nature but it does not give any liberty to anyone to take the shelter of the C.P.Act for wrong gain.            Thus the O.P No.1 has stated that since because the complainant was well aware about the mobile set to have been exposed to liquid damage, the same is out of warranty coverage.  Accordingly the O.P No.1 has stated to dismiss the complaint petition as filed by the complainant. 

3.         Keeping in mind, the contentions of the complaint petition and that of the written version of O.P No.1 this Commission feels it proper to settle the following issues.

            i.          Whether the case is maintainable?

            ii.         Whether the complainant has any cause of action to file this case?

            iii.        Whether there was any deficiency in service?

            iv.        Whether the complainant is entitled to the reliefs as sought for?

Issues no.1,2 & 3:

            Issues no.1,2 & 3 are taken up together first for the sake of convenience.  It is not disputed at all that the complainant had purchased the mobile hand set which had a screen flickering defect within the warranty coverage period.  It is also not disputed that subsequently there was a “No signal” defect in the said mobile hand set of the complainant for which he had taken the same for repairing to O.P No.2 for second time but according to O.P No.1, since because no signal defect is noticed in the mobile hand set of the complainant due to exposure of it to liquid substances and it is not to be covered under the warranty.  According to O.P No.1, in his Website the terms and conditions of warranty is clearly indicated.  Now it is to be seen that if while selling the mobile hand set to the complainant any of the O.Ps had explained about the terms and conditions of warranty to the complainant and sensitized him about the availability of warranty in the Website of O.P No.3.  It is urged by the O.P No.1 in his written version that relying upon certain decisions that since because it was exposed to liquidic substances, the said mobile hand set of the complainant is out of warranty coverage but the O.P No.1 has not proved that if the complainant had ample knowledge about the terms and conditions of the warranty prior to purchasing the mobile hand set for which he seeks warranty coverage.  Moreso, it is undisputed that for the first instance when there was flickering of screen in the mobile hand set, it was repaired by the O.P No.2 and repair charge was collected from the complainant even though it was covered under the warranty then.    There is no explanation to that effect from the O.Ps as to why the complainant was asked to pay for the repair at the first instance.  That apart, as alleged by O.P No.1 the test by virtue of which it was noticed that the mobile hand set of the complainant was subjected to liquidic substance is not proved here in this case. When there is neither any documentary evidence nor any oral evidence to that effect, it cannot be held here that if there was any exposure to liquidic substance of the mobile phone in question. Here in this case, the O.Ps admit about the defect in the mobile phone of the complainant and have hesitated to repair the same without money even though warranty was persisting.  Here in this case, there was no express or implied agreement.  The terms of warranty were not explained properly to the complainant.   Hence, all the decisions relied upon by O.P No.1 are not applicable here in this case.  As such, this Commission holds that there was deficiency in service on the part of the O.Ps.  Not only for the second time but also for the first time when under the coverage of warranty,  service charge was collected by O.P No.2 for rectifying the defect.     Accordingly, this Commission holds here that the complainant had in fact a cause of action to file this case and the case is definitely maintainable.  Hence issues No.1,2 & 3 are answered in favour of the complainant.

Issue No.4.

            From the above discussions, this Commission is of the opinion that the complainant is definitely entitled for the reliefs as sought for.  This issue is accordingly answered.  Hence it is so ordered;

                                                               ORDER

            The case is decreed on contest against the O.P No.1 and exparte against O.Ps No.2 & 3.  The O.Ps here in this case are jointly and severally liable for the latches on their part and thus they are directed by this Commission to replace the mobile hand set of the complainant by paying back the consideration amount of Rs.8000/- to the complainant along with interest @ 12% per annum till final clearance of the said money is made, together with compensation and litigation fee of Rs.20,000/- to be paid by the O.Ps to the complainant.  This order is to be carried out within a month hence.

            Order pronounced in the open court on the 6^th day of May,2022 under the seal and signature of this Commission.

 

                                                                                                                             Sri Debasish Nayak

                                                                                                                                        President

 

                                                                                                                       

                                                                                                                             

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.