Delhi

North West

CC/1132/2015

ASHWANI SHARMA - Complainant(s)

Versus

MICROSOFT CORPORATION INDIA PVT.LTD. - Opp.Party(s)

05 Dec 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NORTH-WEST

GOVT. OF NCT OF DELHI

CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.

CC No: 1132/2015

D.No.________________________         Date: ________________

IN THE MATTER OF:

ASHWANI SHARMA S/o SH. P.L. SHARMA,

R/o C-2/121, C-2 BLOCK,

YAMUNA VIHAR, DELHI-110053.… COMPLAINANT      

Versus

1. MICROSOFT CORPORATION (I) PVT. LTD.,

    REGUS BUSINESS CENTRE, UNIT # 432, 433,

    LEVEL 4, RECTANGLE No. 1,

    (BEHIND MARRIOT HOTEL-SAKET),

    COMMERCIAL COMPLEX,

    D-4, SAKET, NEW DELHI-110017.

2. SERVICE SOLUTIONS, MIRCOSOFT/NOKIA CARE,

    R-30-31, 2^nd FLOOR, SHAKARPUR, VIKAS MARG,

    NEAR METRO PILLAR No. 45, DELHI-110092.

3. M/s SRI SRI CELL ZONE,

    G-7, PEARL BEAST HEIGHT-II,

    NSP, PITAM PURA,

    NEW DELHI-110034.                                       … OPPOSITE PARTY(IES)

CORAM :SH. M.K. GUPTA, PRESIDENT

                SH. BARIQ AHMED, MEMBER

      MS. USHA KHANNA, MEMBER

                                                            Date of Institution: 30.09.2015   

                                               Date of decision:05.12.2017

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SH. BARIQ AHMED, MEMBER

ORDER

1.       The complainant has filed the present complaint against the OPs under Section 12 of the Consumer Protection Act, 1986 thereby alleging that the complainant purchased a new mobile Nokia model 535, IMEI No. 355741065208233 vide retail invoice no.022 on 13.12.2014 of Rs.9,150/- including VAT from OP-3. The complainant further alleged that from the date of purchase the said mobile handset was malfunctioning such as automatically switching to maximum zoom state, not zooming back to normal state, touch problems, typing keys inserting more than one character for single tap, backspace keys removing more than one characters for single tap, space bar key inserting dots automatically, navigation keys malfunctioning when keys above them tapped etc. for which the customer care advised to update the software which was carried out but there was no improvement in the functioning of the mobile handset. Thereafter the complainant sent many e-mails to

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          which is still in non-working condition and the complainant has purchased the same to resolve his day to day issues by using smart phone but all in vain. The complainant further alleged that the complainant came to know from the internet that the above model of OP is having basic manufacturing defect due to poor design and bugs in software of the mobile handset and so many purchasers have made so many complaints and still making complaints about the said model of the mobilehandset at web portal namely “gsmarena.com/newscomm-10678.php”. The complainant further alleged that during the last visit to OP-2 on 01.07.2015, only software was updated which has not resolved the problems and after the software update the complainant found more problems with the functioning of phone like ‘automatic waking up and vibrating’ any time while lying in idle mode & nobody touching it and consequently going to maximum zoom state and another problem being faced now is ‘after typing the password in-place of welcome screen the complainant find applications like camera, bing, calculator running’ and the complainant never use them just before putting the phone in idle state and even typing of password make automatic triggering before completion and shows incorrect password. The complainant further alleged that if the charger is connected to the mobile handset the condition becomes miserable

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          and all these problems were communicated to OP-2 via e-mail but instead of offering any solution they have stopped replying to the e-mails and since the last 2 months the customer care has stopped answering to the e-mails and the complainant has sent the notices via e-mail to replace the set or to refund the amount but no heed has been paid to the requests and the complainant accordingly alleged that there is deficiency in service and unfair trade practice on the part of OPs.

2.       On these allegations the complainant has filed the complaint praying for direction to OPs to refund the amount of Microsoft/Nokia Lumia 535 mobile phone alongwith interest @ 24% p.a. from the date of its purchase till realization as well as compensation of Rs.1 lakh for causing mental agony and harassment alongwith interest @ 24% p.a. from the date of complaint till its realization including litigation charges.

3.       Notices to OPs were issued through speed post for appearance on 04.11.2015. But none for the OP-1 & OP-2 appeared on 04.11.2015, 22.12.2015, 07.03.2016 & 04.05.2016 and as such OP-1 & OP-2 have been proceeded ex-parte vide order dated 04.05.2016. However, OP-3 has filed the written statement and submitted that the complaint is not maintainable and is liable to be dismissed. However subsequently none for OP-3 appeared on

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          19.12.2016 & 28.02.2017 and OP-3 was also proceeded ex-parte vide order dated 28.02.2017.

4.       The complainant filed rejoinder to the reply of OP-3 and denied the submissions of OP-3.

5.       In order to prove his case the complainant filed his affidavit in evidence and also filed written arguments. The complainant has placed on record copy of retail invoice no. 022 dated 13.12.2014 for purchasing the mobile issued by OP-3, copy of various complaints through e-mail and copy of voter ID card.

6.       This forum has considered the case of the complainant in the light of evidence and documents placed on record by the complainant. The case of the complainant has remained consistent and undoubted. There is nothing on record to disbelieve the case of the complainant. Moreover, it appears that even after receiving notices of this case from this forum, the OP-1 & OP-2 have kept mum and have not bothered to answer the case of the complainant. Furthermore, no affidavit in evidence of any official of OPs have been filed to prove their defence, if any.

7.       On perusal of the record, we find that the complainant made complaint of his mobile phone to OPs within warranty period. OPs have not tried to rectify the defect which has occurred in the mobile phone. It was the duty of the OPs to rectify the defect or to replace

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          the product. A customer/consumer is not expected to file complaint in respect of a new product purchased. It is expected that the new product purchased is free from all sorts of defects in the product. As no evidence have been lead by OPs and as such it seems that OPs have no genuine defence. Accordingly, OP-1 & OP-2 are held guilty of unfair trade practice and deficiency in service.

8.      Accordingly, the OP-1 & OP-2 jointly or severally are directed as under: -

i)        To pay to the complainant an amount of Rs.9,150/- being the price of the mobile phone on return of the mobile handset with accessories and original bill.

ii)       To pay to the complainant an amount of Rs.8,000/- as compensation including litigation cost towards mental agony and harassment caused to the complainant.

9.       The above amount shall be paid by the OP-1 & OP-2 jointly or severally to the complainant within 30 days from the date of receiving copy of this order failing which OP-1 & OP-2 shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving copy of this order till the date of payment. If OP-1 & OP-2 fail to comply the order within 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.

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 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. Thereafter file be consigned to record room.

Announced on this 5^thday of December, 2017.

  BARIQ AHMED                            USHA KHANNA                   M.K. GUPTA

    (MEMBER)                                    (MEMBER)                      (PRESIDENT)