Delhi

North East

CC/221/2016

M/S MARINA K. SAIKIA - Complainant(s)

Versus

MICROMAX SERVICE CENTER - Opp.Party(s)

13 May 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 221/16

 

In the matter of:

 

	Ms. Marina K. Saikia W/o-Sh. Raj Kumar D1/D-2, Plot No., Flat No. F-2/F-3 Ashirwad Apartment Dilshad Colony Delhi-110095	Complainant
	Versus
1.       2.       3.           4.         5.	Micromax Service Centre B-1/235, Yamuna Vihar Delhi-110053   Micromax Service Centre B-36, Guru Nank Pura, Opposite V3S Mall Near Maharaja Banquet Hall Laxmi Nagar, New Delhi-110092   Tarash Overseas Pvt. Ltd., Plot No. 5, Sec.-27B Sahani Chowk, Behind SSR Corporate Tower Faridabad, Haryana-121003   Home Shop 18 7th Floor, FC-24, Sec-16A Filmcity, Noida U.P.-201301   Micromax, Micromax House 90-B, Sec-18 Gurgaon-122015, Haryana	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

26.08.2016 13.05.2019 13.05.2019

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The facts in brief, as culled out by the complainant are that she had purchased a mobile phone model Micromax Canvas 5 Phablet Elanza A93 bearing IMEI No. 911342301522334 manufactured by OP5 through online portal i.e. OP4 sold by OP3, seller registered with OP4 vide order no. 959745207 placed on 04.12.2014 for a sum of Rs. 5,999/- inclusive of tax through cash on delivery vide invoice No. TARA/14-15/416620 dated 05.12.2014. The said mobile was delivered to the complainant on 02.01.2015. The complainant has submitted that the camera of the mobile was not as per the specification and assurance given by OP3 and after 8 months of usage of the said mobile, she started facing minor problems therein and the mobile started giving problem of connector of battery and frequent switching off. The complainant approached OP1 and OP2, authorized service centers of OP5 in September 2015 for rectification of the defect in the said mobile where on inspection of the device, OP2 made out a list of problems in the said mobile and asked the complainant to pay Rs. 2,000/- for replacement of battery connector and updation of software alongwith replacement of charging slot of the mobile. The complainant paid the requisite amount to OP2 for the above mentioned repairs but no receipt was issued by OP2 despite complainant’s demand for the same on the pretext given by OP2 that the same was not required for repairing of mobile as the problem of display of mobile was not covered under warranty and further OP2 gave no assurance regarding durability of the mobile phone even after repairs. The complainant has further submitted that the subject mobile functioned only for a week after repairs but thereafter OP2 failed to attend to the grievance of the complainant and started demanding further sum of Rs. 3,000/- for repairing the same which shocked the complainant and having no other option was constrained to file the consumer complaint alleging negligence and unfair trade practice on the part of OPs causing mental agony and harassment to the complainant and while assessing the total loss suffered by her under the heads cost of the mobile alongwith repairing charges totaling Rs. 8,000/- and compensation of Rs. 70,000/- towards professional loss, Rs. 15,000/- for mental agony and suffering and Rs. 5,000/- for litigation expenses totaling Rs. 98,000/- prayed for issuance of directions against the OPs to replace the defective mobile or refund the costs thereof alongwith payment of compensation of Rs. 92,000/- on account of professional loss, cost of repairing drafting of complaint, loss of mental peace and health, mental agony and harassment and Rs. 98,000/- as costs.        

Complainant has attached copy of packaging of the mobile booked through OP4 alongwith copy of COD invoice issued by OP3 seller and retail invoice issued by OP3 in favour of the complainant.

2. Notice was issued to the OPs on 16.09.2016. Notice to OP1 was received back with postal remark ‘Refused’ which is deemed service under Section 28 (3A) of CPA. OP2, OP4 and OP5 was served on 05.10.2016 and OP3 was served on 10.10.2016. OP1 & OP2 did not appear despite service and were therefore proceeded against ex-parte vide order dated 14.12.2016. OP3 and OP4 filed separate written statement though through common counsel taking common preliminary objection being almost repetition of each other, we therefore deem it unnecessary to burden the order by reproducing them separately. Both OP3 and OP4 took preliminary objection of they being seller and online market platform respectively and any deficiency in after sales service of the product during warranty or defect therein post sale is attributed to manufacturer of the product i.e. OP5 and its ASC i.e. OP1 and OP2 and is the liability of both and not that of seller or online market platform i.e. OP3 and OP4 which cannot be vexed with liability of deficiency of service  for non performance on the part of OP1, OP2 and OP5 since OP3 and OP4 neither manufacturer nor service provider of the product in question, being only responsible for delivery of product and marketing of products through advertisement respectively as per their roles. Both OPs denied any deficiency of service, unfair trade practice, negligence, short coming and inadequacy in quality and manner of service required to be maintained by them. Both OPs further urged that the complainant has received the mobile alongwith the warranty card and in case of non functioning or any defect in the said mobile, could have availed of the facility provided by OP5 subject to terms and condition mentioned therein since OP3 and OP4 played respective roles of only timely delivery of the product and only to book the order respectively and the complainant has nowhere in the complaint raised any dispute with regard to factum of delivery of the said mobile phone and neither contacted nor lodged any complaint with either of the OPs or informed them of any manufacturing defect in the said product and on all the above mentioned grounds of defence prayed for dismissal of the complaint.  

OP5 filed its written statement which took the preliminary defence that the complainant has not filed any document or warranty terms and condition in support of her allegation against OP5 and OP1 and OP2 and alleged that the mobile may have been physically / liquid damaged for which OP1 and OP2 would have asked for money for repairs and has not placed on record a single documents in support her averment of having ever visited OP1 or OP2 and prayed for dismissal of the complaint on grounds of same being unreasonable, not maintainable, unsupported by documentary evidence or any expert report to prove allegation of defect of mobile and inherent ambiguity of the complaint. Lastly, OP5 resisted the complaint on grounds of complainant not having filed copy of any jobsheet against which she sought services from OP1 and OP2 and therefore no question of any deficiency of service or unfair trade practice arose giving rise to cause of action against OP5.

3. Rejoinders to the written statement of all aforementioned OPs were filed by the complainant in summary denial of the respective defence taken therein and complainant reiterated and reaffirmed her grievance against the OPs.
4. Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon / filed alongwith the complaint as Ex-CW1/1 to CW1/4.
5. Evidence by way of affidavit was filed by OP3 and OP4 through their respective authorized ARs/ Authorized Signatories exhibiting the authorization to that effect.
6. Evidence by way of affidavit was filed by OP5 through its Senior Manager Legal swearing and affirming the defence taken in the written statement.
7. Written arguments were filed by complainant, OP3, OP4 and OP5 in reemphasis of their respective grievance / defence. In the written submission filed by OP3 and OP4, both respectively argued that they dealt in consumer goods and facilitating transaction between manufacturer and buyer and being electronic intermediary / market place facilitating transaction between buyer and seller and that the complainant has neither deposited the alleged mobile before this Forum nor filed any expert’s report showing defects in the mobile in absence of which the allegation are baseless. OP5 also argued that complainant failed to prove any specific manufacturing defect in the mobile by way of any documentary evidence or authenticated report of expert.
8. At the advance stage of proceedings, an attempt was made for amicable settlement in the matter between complainant and OP5 which could not be furthered due to complainant admittedly having lost the original jobsheet of mobile repair in absence of which OP5 declined to offer any settlement.
9. We have heard the rival contentions of complainant and OP5, OP3 and OP4 not present after September 2018 and have perused the documentary evidence placed on record.
10.  Conspicuously, the complainant has not placed on record any jobsheet or warranty terms and conditions of the subject mobile to authenticate her claim of her mobile having been rendered dysfunctional within the warranty period for which repair charges were levied illegally by OP1 and OP2 and jobsheet issued to that effect for delineating the defects in the mobile noticed on submission for repairs. The Hon’ble National Commission in Shivprasad Papers Industries Vs Senior Machinery Company (2006) I CPR 227 (NC) held that without proving any manufacturing defects, the complainant cannot claim refund of money. The Hon’ble National Commission in Eicher Motors Ltd Vs Mahendra Nirmal Kumar Nirmal 2000 (I) CPR 89 (NC) held that the question of manufacturing defect and compensation should be done on basis of evidence adduce by parties alleging it. The Hon’ble National Commission in Engineers International Vs District Forum V. Vasudeva Rao 1997 (2) CPJ 3 (NC) dismissed the appeal on grounds that appellant did not produce any evidence to substantiate his claim / allegation of defect in machine purchased by him. Similarly in Jyoti Aggarwal Vs branch Manager, Kores India Ltd 2002 (3) CPR 45 (NC), Hon’ble National Commission upheld order of lower Fora holding that there was no defect in photocopy  machine which was used for nearly one year. Lastly, the Hon’ble National Commission is Sure Marketing Services Vs Leo D’Souza 1992 CPC 417 (NC) set aside order of District Forum and State Commission which had allowed the complaint and dismissed the same on ground that there was no proof that damage to the television set picture tube was within warranty period.
11.  In light of the exhaustive discussion of the settle proposition of law laid down the Hon’ble National Commission in the aforementioned case laws, it is a foregone conclusion that the onus to prove the manufacturing defect is on the complainant which in the present case the complainant has failed to establish in absence of any jobsheet or any document in support thereof whether the subject mobile suffered from any manufacturing defect within the warranty period since there are no dates or any specification with respect to any repair or payments made there against.
12.  We therefore do not find merit in the present complaint and dismiss the same with no order as to costs. 
13.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on 13.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member