Haryana

Jind

CC/51/2016

Surender Kumar - Complainant(s)

Versus

Micromax House - Opp.Party(s)

None

06 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM, JIND. 
                                                 Complaint Case No. 51 of 2016
                                                 Date of Institution:  03.05.2016
                                                 Date of Decision   : 06.12.2016
Surender Kumar s/o Sh. Surajmal  r/o H.No.417, Sector-8, Huda Jind Teh. & District Jind-126102 (Haryana)

                                                                             ….Complainant.
                                       Versus
Micromax house, 697 Udyog Vihar Phase-V, Gurgaon-122022 Haryana, India phone number +91-124-4811000 Fax number +91-124-4009603 Email ID: info@micromaxinfo.com, support service email ID is support@ Yuplaygod.com & toll free no. is 18602122122.
M/s Sonu Mobile Shop, Shop No.9, Basment near Bharat Cinema, Jhanj Gate, Batra Shopping Complex Jind, PIN-126102.
Cloudtail India Pvt. Ltd., Unit no.1, Khewat/Khata No.373/400 Mustail No.31, village Taoru, Teh. Taoru, Distt. Mewat on Bilaspur-Taoru Road Mewat-122105, Haryana (India) & registered address of company is Cloudtail India Pvt. Ltd. S-405 L-Ground Floor, Greater Kailash II, New Delhi-110048.
Amazon Seller Services Pvt. Ltd., Ground Floor, Eros Corporate Centre, Nehru Place, New Delhi-110019, Fax No.040-39922887.
                                                                       …..Opposite parties.

                          Complaint under section 12 of the
              Consumer Protection Act, 1986.

CORAM: SH.A.K. SARDANA PRESIDENT.
               SMT. BIMLA SHEOKAND, MEMBER.
              SH. M.K. KHURANA, MEMBER.   

 Present:   Complainant in person.
                OPs No.1&2 ex-parte. 
                Sh. Vinod Bansal Adv. counsel for OP No.3.
               Sh. Bhim Kaushal Adv. counsel for OP No.4.
         
ORDER:

             Brief facts of the  present complaint are that  the complainant  purchased  a mobile  phone having Model No.A05510 (YU yureka) worth Rs.8999/- from OP No.3 (manufactured by Micromax Pvt. Ltd. i.e.  OP No.1) vide invoice No. HR-DEL2-144105 dated 26.2.2015. The mobile of the complainant got out of service on 14.2.2016 and thus he made a complaint on the same day on toll free No. 18602122122  of company and got deposited the mobile set in question with  OP No.2  i.e. service centre of OP  company on 18.2.2016 for repairing  the same being under  warranty.  OP company service centre  returned the mobile set in question on 19.3.2016 i.e. after retaining the same about one month and that too by changing the same with old one having different IMEI No.911401502173261 but the said replaced set was also not working well and having charging problem. So, the complainant again complained to OP company at their toll free No. whereby they again directed to deposit the mobile in question with their service centre and thus the complainant again depoisted the same on 22.3.2016 with OP No.2. But inspite of repeated visits/calls, OP service centre failed to repair/rectify the defects of the mobile in question as the dates regarding depositing & receiving of the phone  in question are as under:-
Sr.No.    Dates of depositing    Job Sheet No.    Dates of receiving 
        the phone                            back the phone
                                                                        unrepaired.

1.    18.2.2016            500260216    19.3.2016
                    -21976009
2.    22.3.2016            500260316    5.4.2016
                    -22567291
3.    6.4.2016            500260416    22.4.2016
                    -22784193
4.    23.4.2016            OP service centre 
                                                denied for Repairing
                        under Warranty in the 
                    written form on the 
                    application of complainant.
Detail of phone calls made to OPs:-
Sr. No.    Dt. Of call        Ticket No.
1.    14.2.2016            2118353
2.    12.3.2016            2235287
3.    20.3.2016            2272044
4.    24.3.2016            2290363
5.    30.3.2016            2216335
6.    2.4.2016            2330365
7.    4.4.2016            2336563
8.    5.4.2016            2342459
9.    23.4.2016            2412255

As such, the complainant has submitted that the OPs are admittedly deficient in providing proper services to him and  prayed that the complaint be accepted and OPs be directed to pay a sum of Rs.3,50,000/- as compensation to the complainant on account of harassment, loss in work & reputation etc. as well detailed in the complaint.
2.    Upon notice,  OPs No.3 &4 appeared through counsels whereas none appeared on behalf of OPs No.1&2 despite service through registered post. As such, OPs No.1&2 were proceeded against ex-parte vide order daed 16.6.2016. OP No.3 tendered reply to the complaint raising preliminary objections that complaint is not maintainable in the present form and complainant has no cause of action  to file the present complaint against answering OP. On merits, it has been urged that the answering OP is not the manufacturer of the product but only sells it online. The answering OP has no role to play in providing after sale service as the same is the sole responsibility of the manufacturer and its authorized service center, as the case may be under the manufacturer’s warranty clause. So the answering OP is neither responsible for replacement of the product nor liable for refund of cost of product.  As such, there is no deficiency in service on the part of answering OP. In the end, answering OP  has prayed for dismissal of complaint with costs. 
3.    OP No.4 urged that complainant has not bought any goods nor has the complainant paid any amount to answering OP. The goods have been bought by the complainant from OP No.3 selling its products on the Website operated by answering OP. The answering OP has merely provided an online marketplace where independent third party sellers have listed their products for sale. The answering OP is neither a necessary nor a proper party in the complaint.  The role of the answering OP is limited to that of a facilitator and not the seller/manufacturer. The warranty of the product in question is provided by the manufacturer and answering OP has no role to play in these warranty terms & conditions. As such, there is no deficiency in service on the part of answering OP. In the end,  answering OP prayed for dismissal of complaint with costs. 
4.    To prove his contention,  the complainant has produced his own affidavit as Annexure C-1 along with documents as  Annexures C-2 to C-23  and closed his evidence whereas counsel for  OP No.3 tendered affidavit of  one Sh. Harshit Ratan as Annexure RX/3 and counsel for  OP No.4 tendered affidavit of  one Sh. Rahul Sundaram, Senior Corporate Counsel as Annexure R4/X alongwith documents as Annexures R4/1 to R4/4 and closed their evidences respectively.
5.    We have heard the complainant as well as counsel for appearing  OPs and perused the  record  placed on file. The main grievance of the complainant is  that he  purchased online one mobile set from OP No.3 worth Rs.8999/-, which was manufactured by OP No.1 but the said  mobile phone became defective on 14.2.2016 during the warranty period and the complainant deposited the aforesaid mobile set with OP No.2 i.e. service centre of OP company on 18.2.2016. Several visits/ telephone calls/E-mails were made by the complainant with the OPs for rectification of the defect of mobile set but instead of rectifying the same,  OP No.2 handed over  another old mobile set having IMEI No.911401502173261 on 19.3.2016 to the complainant but the said mobile set was also  having  the same problem of charging and again the complainant deposited the mobile set with the service centre on 22.3.2016 for its repair which the OP No.2 handed over  again to the complainant on 5.4.2016 but the mobile set in question was unrepaired i.e. having same problem of charging. Again the complainant deposited the mobile set with the OP No.2 on 6.4.2016 and the same was returned by the OP No.2 on 22.4.2016. The complainant checked the mobile and found that the mobile set having the same problem and thereafter complainant again contacted the OP No.2 but the OP No.2  did not receive the mobile in question this time alleging it to be out of warranty. The complainant further contended that due to non availability of mobile set, he suffered badly and failed to contact with his ill father as well as his family members and prayed for acceptance of complaint with costs & compensation.
6.    On the other hand, the manufacturer as well as occupier of  service centre of the OP company/ mobile set did  not appear and as such they were proceeded against ex-parte. The counsel for OPs No.3 &4 argued that they are only seller of the mobile set and after sale of any goods, it is the duty of the manufacturer to provide the service to the customers as per warranty clause and as such there is no deficiency on the part of the OPs No. 3&4 and prayed for dismissal of complaint qua them. 
7.    After hearing Ld. Counsel for parties and going through the record placed on file, it is an admitted fact on record that complainant purchased mobile set of OP company vide bill Annexure C-2 having one year warranty and during the warranty period, the mobile set became defective and several complaints were made with the OPs No.1 &2 but the OPs No.1 &2 failed to rectify the inherent defect from the mobile set of the complainant. Further, it is also not in dispute that the  defective mobile set in question was deposited with service centre of OP company for rectification of defects repeatedly as clear from documents  Annexures C-3 to C-12 i.e.  application as well as copy of e-mails etc.  made by complainant to OPs No.1 &2. In view of the overwhelming documentary evidence placed on record by the complainant, we are of the view that there is an inherent defect in the mobile set in question to which OPs No.1 &2 failed to rectify inspite of retaining the same repeatedly at their service centre.  Further, manufacturer and service centre of the mobile set  in question  did not bother to appear and contest the present complaint despite service and in these circumstances we have no option  except to believe the version of the complainant that service centre of OP company did not rectify the defect of the mobile set in question till date.  
8.    In view of the position explained above, we have no hesitation in holding that the mobile set in question  was having a manufacturing defect which the service centre as well as manufacturer  i.e. OPs No. 1 &2 failed to  rectify. Therefore, the complainant is entitled to an appropriate relief for the harassment suffered by him as he  failed to contact with his  ill father as well as his family members, relatives and friends. As such, we hold that there is clear cut deficiency in service on the part of the OPs No.1 &2 as they failed to provide the faithful services to the complainant during the warranty period. Hence, we accept the present complaint and direct the OPs  No.1&2 to comply with the following directions within thirty days from the communication of this order:-
(i)    to return the cost of mobile i.e. Rs.8,999/- to the complainant  
       alongwith simple interest @9% per annum from the date of 
       institution of complaint to till date.
(ii)   to pay a sum of  Rs. 5,000/-as compensation to the complainant 
       on account of harassment, mental pain & agony and costs of 
       litigation etc.
             Let the aforesaid order/directions issued above must be complied with by the OPs No.1 &2 within the stipulated period failing which all the awarded amounts shall further attract simple interest @12% per annum for the period of default. So, the complaint is 
decided in above terms. A copy of this order be sent to the parties concerned free of cost. File be consigned to the record room after due compliance. 

Announced:

                                                                                                                                    PRESIDENT                                                                                                                                                                                         District Consumer Disputes
                                                                                                                      Redressal Forum, Jind. 

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