DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB. 

 

Complaint Case No : CC/250/2022

Date of Institution : 09.12.2022

Date of Decision : 03.04.2024

Mohit Garg s/o Sat Bhushan Garg r/o House Number B-1/427, Handiaya Bazaar, Barnala, District Barnala, Punjab Pincode-148101. 

                   …Complainant

Versus

1. Manish Telecom, Sadar Bazaar, Near Railway Station, Barnala, District Barnala, Pincode-148101.

2. The Care Manager, HMD Mobile India Private Limited, Ashoka Estate, Flat No. 814, 8th Floor, 24 Barakhamba Road, New Delhi-110001. 

                …Opposite Parties

Complaint under Section 35 of The Consumer Protection Act, 2019.

Present: Sh. Jashan Modi Adv counsel for complainant.

  Sh. Varun Singla Adv counsel for opposite party No. 1.

Sh. NK Garg Adv counsel for opposite party No. 2. 

Quorum:-

1. Sh. Jot Naranjan Singh Gill : President

2. Smt Urmila Kumari : Member

3. Sh. Navdeep Kumar Garg : Member

(ORDER BY URMILA KUMARI MEMBER):

    The complainant namely Mohit Garg has filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Manish Telecom, Barnala and another. (hereinafter referred as opposite parties).  

2. The facts leading to the present complaint are that the complainant purchased a mobile phone model Nokia 105 dual SIM from opposite party No. 1 vide invoice No. 703 dated 28.7.2022 bearing IMEI No. 359808356484850 by paying an amount of Rs. 1,350/-. At the time of purchasing the said mobile phone opposite party No. 1 gave one year warranty to the complainant on the said mobile phone. It is further alleged that after a day of purchasing, the said mobile phone has been stopped working. The complainant approached the opposite party No. 1 at his shop many times for repairing the said mobile phone but opposite party No. 1 refused to the complainant every time for giving any type of service. After few days the opposite party No. 1 replaced the said mobile phone with another mobile phone bearing IMEI No. 359808356496144 and further extend the period of warranty for one year. 

3. It is further alleged that after replacing the said mobile phone by opposite party No. 1 complainant used the said phone for his routine business purposes but after two or three days of replacing the said mobile phone complainant again faced the problem in the mobile phone. It is further alleged that complainant again approached the opposite party No. 1 for repair of mobile phone but opposite party No. 1 harassed the complainant. The opposite party No. 1 keep the mobile phone of complainant and give assurance that he will repair it and kept it without giving any stipulated time period. 

4. It is further alleged that after 2-3 months complainant get his mobile phone back in worse condition and opposite party No. 1 demanded repair charges without repairing and disclosing any defect in the mobile phone. At the time of selling the mobile phone opposite party No. 1 give assurance to the complainant that one year warranty is free and if any problem arising in the phone within one year the opposite party No. 1 will repair the mobile phone without any charges and costs but now opposite party No. 1 demanded money without repairing the mobile phone. The complainant again requested the opposite party No. 1 many times for repair the said mobile phone but despite giving assurance this time opposite party No. 1 flatly refused the complainant for repair/ replace or refund the selling cost of the said mobile phone. Hence, the present complaint is filed for seeking the following reliefs.- 

1) The opposite parties be directed to repair/replace the mobile phone.  

2) To pay compensation of Rs. 1,00,000/- on account of physical and mental harassment. 

3) To pay Rs. 11,000/- as litigation expenses.

5. Upon notice of this complaint the opposite party No. 1  appeared and filed written version by taking legal objections interalia on the grounds that the complainant has no locus standi to file the present complaint. The complaint is bad for non joinder of necessary parties. The Care Centre at District Barnala of the mobile phone where the mobile phone of any consumer under warranty is deposited by the consumer himself for repair or replace is not made a party being necessary party and in their absence the present complaint cannot be properly and finally adjudicated. The complainant has not come with clean hands and intentionally concealed the material facts from this Commission and is not entitled to any relief. The instant complaint is false, malicious, incorrect and with malafide intent and is nothing but an abuse of process of law. The complainant has made misconceived and baseless allegations of deficiency of service without any documentary evidence in support of his allegations made in the complaint. The complaint filed by the complainant does not fall within the definition of 'consumer dispute' under Consumer Protection Act as there is neither any unfair trade practice adopted by the opposite party No. 1 nor any deficiency in service being established against the opposite party No. 1, hence the allegations made therein are frivolous and baseless. The instant complaint is neither maintainable in law nor on facts and same is liable to be dismissed in limine. 

6. On merits, it is admitted that the complainant has purchased a mobile phone from the opposite party No. 1. It is denied that at the time of purchasing the said mobile phone opposite party No. 1 gave one year warranty to the complainant. The complainant never visited the shop of opposite party No. 1 after the date of purchasing the mobile phone. It is denied that opposite party No. 1 replaced the said mobile phone and further extended the warranty. The complainant is unnecessary creating loss and damages besides mental tension, trauma and inconvenience by filing false, frivolous and vexatious complaint against opposite party No. 1 to harass the answering opposite party. Lastly, the opposite party No. 1 prayed for the dismissal of the present complaint with special costs. 

7. The opposite party No. 2 also filed written version by taking preliminary submissions that complainant has presented false and fabricated facts in the instant complaint with the objective of gaining wrongfully from the answering opposite party, so the complainant is not entitled to any claim or to get any relief claimed therein. It is further submitted that the impugned mobile phone set i.e. Nokia 105 dual SIM purchased by the complainant did not suffer from any manufacturing defect and complainant's allegations that the handset was not working properly without adducing any documentary evidence whatsoever is false and baseless. The complainant has failed to produce any documentary evidence on record to support his allegations of manufacturing defect in the handset. It is further submitted that the complaint regarding the defect in the product if any as alleged is a false claim as the complainant has not filed any evidence to show that he had approached any Authorized Service Centre of answering opposite party for repair of the handset. As per the contents of complaint the complainant had approached the opposite party No. 1 for repair of his handset and had never approached Authorized Service Centre of the answering opposite party for the repair of the handset. The opposite party No. 1 is not Authorized Service Centre of the answering opposite party. So, no services were provided by the answering opposite party or its Authorized Service Centre to the complainant. The instant complaint has been filed by the complainant with the objective of taking undue advantage at the expense of the answering opposite party and as such the complaint is liable to be dismissed on this ground. It is further submitted that the manufacturing company subjects its products to stringent quality control mechanisms to ensure that the mobile phone which reaches the consumers is free from defects and above all is genuine. The complainant's case is sheer reflection of misuse and mishandling of the mobile phone hence answering opposite party cannot be held responsible for irresponsible, careless and negligent handling of the mobile phone by the complainant. In this regard, it would be pertinent to mention here that warranty period covers the range of faults that ensue normally from mechanical functioning of the mobile set without any interference or outside influences. It is further submitted that the alleged defects in mobile phone arose as a result of negligence and improper usage and handling on the part of the complainant and by making baseless averments against the opposite party that the handset is having manufacturing defect. There is nothing on the record to show that there was any defect either manufacturing or mechanical as alleged in the impugned product/mobile phone and in such a circumstance he has no right or locus standi to file the present complaint. The limited warranty document is a part of the user manual and is inserted in every package of a mobile phone manufactured by answering opposite party and is a caveat to the buyer, clearly provides that in the event of any defect/problem in the handset of a Nokia customer the handset will be repaired free of costs by the answering opposite party or its Authorized Service network provided firstly the handset is a genuine handset secondly it suffers from a defect or a problem during the limited warranty period and the said defect/problem is covered under the limited warranty offered by the answering opposite party i.e defect in material and workmanship and thirdly the consumer does not violate/breach any of terms and conditions as stated in the limited warranty document. It is further submitted that when a handset is suffering from a defect covered under the limited warranty which occurs during the validity of warranty period and such a defect is beyond repair, only then in such a rare event, the defective part is replaced and or handset is replaced by another handset of the same model to avoid any kind of inconvenience or loss to the consumer. Replacement as per the limited warranty terms is limited only to those cases where repair is not possible and or where there is genuine problem of repeated repairs of the same problem. The complainant had not approached the Authorized Service Centre of the answering opposite party for repair of the handset as per the terms of the warranty clause. There has been no deficiency in service by the answering opposite party as no service was provided by the answering opposite party or by its Authorized Service Centre. Further, the answering opposite party is not privy to any communication which happened between the complainant and the opposite party No. 1. So, the present complaint has been filed by the complainant with no genuine or valid cause but to take undue advantage of his own wrongs. The omission on the part of the complainant to adduce basic evidence on record clearly reflects the malafide intention of the complainant to harass the answering opposite party and to take the undue advantage of warranty terms and as such the present complaint is liable to be dismissed.

8. On merits, it is submitted that the answering opposite party only provides one year warranty which clearly provides that in the event of any defect/problem in the handset of a Nokia customer the handset will be repaired free of charges by the answering opposite party or its Authorized Service network provided firstly the handset is a genuine handset secondly it suffers from a defect or a problem during the limited warranty period and the said defect/problem is covered under the limited warranty offered by the answering opposite party i.e defect in material and workmanship and thirdly the consumer does not violate/breach any of terms and conditions as stated in the limited warranty document. It is further submitted that the complainant had not filed any documents regarding the defects in the handset. The complainant had not approached Authorized Service Centre of the answering opposite party for repair of the handset. The opposite party No. 1 is not Authorized Service Centre of the answering opposite party. It is denied that the answering opposite party had manufactured the defective handset. The complainant had not mentioned what are the defect in the handset. The complainant had not filed any document which corroborate the facts that handset was not working properly. It is denied that the complainant is entitled for the replacement/repair of the handset. There is no deficiency in service on the part of the answering opposite party. It is submitted that whatever defect had been pointed out in the complaint, the same was due to mishandling and improper use of the handset by the complainant. The complainant is not entitled for any compensation. There is no documents on record to show that the defect in the handset occurred due to any manufacturing defect and not due to the mishandling of the handset by the complainant and further the complainant had not availed any services of the answering opposite party, so there is no deficiency in service or unfair trade practice on the part of the answering opposite party. Lastly, the opposite party No. 2 prayed for the dismissal of the present complaint being false and frivolous and pass any other and/or relief which this Commission may deem fit and proper in the facts and circumstances of the matter. 

9. In support of his complaint, the complainant tendered into evidence his affidavit Ex.C-1, copy of bill Ex.C-2, slip pasted by the opposite party No. 1 on the phone Ex.C-3, copy of warranty card Ex.C-4 and closed the evidence. 

10. To rebut the case of the complainant, the opposite party No. 1 tendered into evidence affidavit of Munish Kumar Ex.OP-1/1 and closed the evidence. The opposite party No. 2 tendered into evidence affidavit of Varun Menon Ex.OP-2/1 and closed the evidence.     

11. We have heard the learned counsel for the opposite parties  and gone through the record on the file. Written arguments also filed by the complainant and the opposite party No. 1. 

12. As per the complainant he purchased a mobile phone model NOKIA 105 dual SIM from the opposite party No. 1 vide invoice No. 703 dated 28.7.2022 with IMEI No. 359808356484850 by paying an amount of Rs. 1,350/- Ex.C-2. The complainant alleged that at the time of purchasing the said mobile phone opposite party No. 1 gave one year warranty on the said mobile phone. The said mobile phone stopped working after a day of purchase. The complainant approached the shop of opposite party No. 1 for getting the phone repaired but the opposite party No. 1 refused to give any type of service. After repeated requests the opposite party No. 1 replaced the said mobile phone with another mobile phone with IMEI No. 359808356496144 and further extended the warranty period for one year. After 2 or 3 days the new replaced mobile phone again started giving problem. The complainant again approached the opposite party No. 1 for repair of mobile phone but the opposite party No. 1 harassed the complainant again and one day opposite party No. 1 kept the mobile phone and assured the complainant that he will repair the said mobile phone. After 2/3 months the complainant got his mobile phone back in worse condition and opposite party No. 1 also demanded repair charges without repairing the phone and disclosing any defect in the said mobile phone. It is further alleged by the complainant that the said mobile phone was within warranty period and the opposite party No. 1 was demanding money without repairing the mobile phone. The complainant requested the opposite party No. 1 many times to repair or replace the said mobile phone but opposite party No. 1 flatly refused to repair/replace or refund the selling costs of said mobile phone.

13. On the other hand, opposite party No. 1 admitted that the complainant purchased the said mobile phone from his shop and at the time of selling the said mobile, opposite party No. 1 never gave one year warranty to the complainant. The complainant never visited the shop of opposite party No. 1 after the date of purchasing the said mobile phone. The complainant has concocted a false story just to avail undue advantage.

14. The opposite party No. 2 submitted that the impugned mobile phone set NOKIA 105 dual SIM purchased by the complainant did not suffer from any manufacturing defect and the complainant's allegations that the handset was not working properly without adducing any documentary evidence whatsoever is false and baseless. As per the contents of the complaint the complainant had approached the opposite party No. 1 for repair of the handset and had never approached the ASC (Authorized Service Centre) of the opposite party No. 2. The opposite party No. 1 is not the Authorized Service Centre of the opposite party No. 2. No service was provided by the opposite party No. 2 or its Authorized Service Centre to the complainant. 

15. On going through the contents of the complaint it has been observed that the complainant purchased the said mobile phone set NOKIA 105 dual SIM from opposite party No. 1. As per the complainant the mobile phone was not working properly on the very first day of purchase. But the complainant has failed to produce any cogent and reliable evidence on record to support his allegations of defect in the mobile phone. The claim for defect must be proved by documentary evidence. Mere allegations are not enough to decide the case against the opposite parties. So, there is no deficiency in service or unfair trade practice on the part of the opposite parties. 

16. From the above discussion it is clear that there is no merit in the present complaint and same is accordingly dismissed. However, no order as to costs or compensation. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

       3rd Day of April 2024

 

 

        (Jot Naranjan Singh Gill)

            President

 

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member