Delhi

North East

CC/522/2014

Deepak Tejan - Complainant(s)

Versus

Micromax Service Centre - Opp.Party(s)

06 Mar 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. 522/14

 

In the matter of:

	Deepak Tejan 271 A/13, Balbir Nagar Extn. Gali No. 16, Shahdara, Delhi-110032	Complainant
	Versus
1.             2.	Service Centre Micromax Shri Krishna Communications                                                                                                                                               A-10, Kabir Nagar Opp. Goyal Gadde Wala Near Shiv Mandir, 100 Ft. Road, Shahdara, Delhi-110032   Micromax Informatics Head Office Micromax House 697, Udyog Vihar Phase-5 Gurgaon-120001	Opposite Parties

 

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

30.12.2014 06.03.2019 06.03.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

 

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Brief facts giving rise to the present complaint as narrated by the complainant are that he had purchased a Micromax Canvas Doodle A-111 mobile phone bearing IMEI no 911307203158511 and 911307203310518 manufactured by OP2 from Baba Telecom on 02.11.2013 vide invoice no BT / 2089 for a sum of Rs. 9,800/-. The said invoice bears the stamp of OP1 as its Authorized Service Centre (ASC). However, the said mobile had manufacturing defect and had to be repeatedly submitted for repairs five times to OP1 in less than eleven months of purchase due to malfunctioning and was submitted by the complainant with OP1 on 13.10.2014  vide job sheet no 30677-1014-13076211  and the subject phone was returned to complainant by OP1 without repairing the same on 20.11.2014 for which reason the complainant submitted it the same day to OP1 vide job sheet no 30677-1114-13455299 with the persisting problem of not charging, low battery and over-heating. The complainant wrote letter dated 01.12.2014 to OP2 expressing his grievance of facing problem in his mobile phone 06.02.2014 onwards repeatedly for which he had submitted the same with OP1 five times and was having a bad experience and asked OP2 to provide him a new handset in lieu of faulty one. The complainant got a call from OP1 on 13.12.2014 informing him that his phone has come back unrepaired and has therefore been returned to OP2 and shall take a month’s time to come back to OP1. The complainant, being harassed issued a legal notice dated 19.12.2014 OP1 and OP2 demanding a new handset failing which he shall be compelled to take legal action against the OPs. However, the OPs paid no heed to the legal notice and failed to redress the grievance of the complaint and therefore the complainant was constrained to file the present complaint against the OPs praying for issuance of direction for refund of cost of Rs.9,800/- as cost of mobile phone, Rs.25,000/- as compensation for mental and physical harassment and Rs.5,000/- towards cost of litigation.
2. Complainant has attached copy of purchase invoice dated 02.11.2013 for purchase of the subject mobile manufactured by OP2 bearing stamp of OP1 on the retailer invoice, copy of job sheet dated 20.11.2014 issued by OP1 for repair of the mobile, copy of letter dated 01.12.2014 by complainant to M.D of OP2 and copy of legal notices dated 19.12.2014 to OPs bearing postal receipt.
3. Notices were issued to OPs on 11.02.2014 OP2 entered appearance and filed its written statement on 02.09.2015. Since none appeared on behalf of OP1 despite several opportunities, and it was proceeded against ex-parte vide order dated 16.10.2015. OP2 in its written statement took the preliminary defence that the complainant had approached OP1 ASC on 20.11.2014 after expiry of the warranty since the date of purchase was 02.11.2013. The handset was duly repaired by OP1 but complainant started raising illegal demands and filed the present complaint as pressure tactics to realize the same. OP2 denied any major defect in the handset on ground of complainant’s failure to prove the same by way of any documentary evidence and raised plea of warranty period covering faults emerging from mechanical functioning of mobile set and limited warranty document which is part of user manual acting as a caveat to the buyer which states clearly that the handset will be repaired free of charge if covered under warranty. OP2 further urged that replacement as per limited warranty terms is limited only to those cases where repair is not possible or where there is a genuine problem of repeated repair of same problem. OP2 took the defence that the complainant had failed to clarify whether the defect in the handset under the warranty defect or due to improper use or whether there was inherent defect or the handset had been tampered with rendering it incompatible. Lastly, OP2 submitted in its defence, the complainant was using the handset for more than 7 months and OP1 had already repaired the same as per warranty but the complainant intentionally did not collect the handset from the OP1 and instead approached this Forum with malafide intent to cause financial to OPs. Therefore urging that there was no deficiency of service or unfair trade practice on the part of OP2, OP2 prayed for dismissal of present complaint.
4. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP2 in which the complainant submitted that the subject was repeatedly submitted by him with OP1 for problem of non functioning and as per its procedure, the repaired phone was given only after collecting the original job sheet and therefore the complainant does not have all previous job sheet except the latest one dated 20.11.2014 on which date the mobile was shown as still under warranty and OP1 itself use to take 20 days time to hand over the phone and that is why when the complainant had deposited the mobile on 31.10.2014, he was handed over the same unrepaired by OP1 on 20.11.2014. The complainant denied any irresponsible and careless / negligence handling of mobile phone as alleged by OP2 and stated that the subject phone had technical problem which arose barely within three months of purchase and therefore the phone was swapped. Lastly, the complainant stated that the subject phone has recurring on / off problem for which it had to be repeatedly submitted with OP1 proving that it had manufacturing problem and denied having used it for more than seven months as contended by OP2 because the said phone was submitted with OP2 on  06.02.2014 itself.
5. Evidence by way affidavit was filed by the complainant deposing that he had submitted the subject mobile phone with OP1 on 06.02.2016 vide job sheet no. 30677-0114-7978375, again on 31.10.2014 vide job sheet no. 30677-1014-13076211  and lastly on 20.11.2014 vide job sheet no 30677-1114-13483269. Despite granting several opportunities to OP2 to file evidence, it failed to do so and therefore its right to file the same was closed vide order dated 26.02.2016.
6. Written arguments were filed by the complainant in which the complainant submitted that the subject mobile was facing software related problem within few days of its purchase and when the complainant approached OP1 for the first time in November 2013, OP1 had declared the handset as Dead On Arrival and replaced the same with brand new handset. However, the same still malfunctioned for which it had to be deposited on 06.02.2014 and before 31.10.2014 was deposited for the second time on 08.09.2014 vide job sheet no 30677-0914-12015501. The complainant submitted that the subject mobile was well within warranty period till last time it was deposited with OP1 for repairs on 20.11.2014 which can be verified from the said job sheet itself showing remark YES for repair warranty. Lastly, complainant argued that the OP2 failed to file evidence by way of affidavit to support it contents in written statement and relied upon judgment of Hon’ble Supreme Court in Ramesh Chand Ardawatiya Vs Anil Panjwani AIR 2013 SCC 2508 decided on 05.05.2003 in which the Hon’ble Supreme Court held that the cases where opposite party is proceeded against ex–parte, the necessity of proof on the plaintiff is not very heavy and can be dispensed with while granting relief to complainant.

OP2 had on proceeding held on 09.07.2018 made an offer of settlement to the complainant the tune of Rs. 15,000/- keeping in view that it was three and half year old case and the cost of subject mobile was Rs. 10,000/- approx. However, no representation was made by OP2 thereafter nor was any settlement facilitated and arguments were heard as addressed by only complainant in course of which the complainant submitted that the records of previous job sheets were procured by him from personal visit to OP1.

7. We have heard the arguments addressed by the complainant and have given our anxious consideration to the documentary evidence placed on record.
8. It can be seen from the job sheets dated 20.11.2014 filed by the complainant that the subject mobile phone was under warranty when it was submitted for repairs with OP1. We do not appreciate the misguiding tactics adopted by OP2 to misrepresent that the mobile phone was out of warranty since it was deposited on 20.11.2014 (having been purchased on 02.11.2014) since the same is contradictory by its own ASC record i.e. job sheet issued by OP1 unambiguously stating that the subject mobile was under warranty. It was the bounden duty of OP2 to ensure that goods manufactured and sold by it are as per quality standard. It was duty of OP1 to hand over the subject mobile phone in duly repaired and functional condition back to the complainant without any inordinate delay. However, in the present case both OPs acted negligently in selling a defective handset which had to be repeatedly submitted for repairs from February 2014 to October 2014 but the recurring problem therein the OPs failed to resolve and paid no heed to the request of the complainant in this regard. Under these circumstances, it proves beyond doubt that the mobile handset which the complainant had purchased was having manufacturing defect which was recurring in nature & which could not be rectified despite repeated submission / deport and the complainant was deprived of service of his handset in this duration and the mobile phone infact is with OP1 till date. As per own admission of OP2, the warranty clause covers a case of replacement where repair was not possible or if there was genuine problem of repeated repair of same problem which absolutely applies the present case. The OP cannot be permitted to hold the complainant at ransom by their callous attitude in attending the problem of consumer. Therefore, selling defective mobile phone and inordinate delay and failure to repair the phone on the part of OP1 tantamounts to deficiency in service on the part of OPs which gave rise to the present complaint when the complainant failed to get any positive response and lost faith in OPs owing to their pathetic and poor service.
9. In view of the facts of the case and documentary evidence placed on record, we direct both the OPs jointly and severally to refund the price / cost of the defective mobile phone i.e. Rs. 9,800/- to the complainant. We further direct the OPs jointly and severally to pay a sum of Rs. 5,000/- as compensation for physical and harassment and Rs. 2,000/- towards litigation expenses to the complainant. Let the order be complied by OPs within 30 days from the date of receipt of copy of this order.
10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  06.03.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)                    Member