Delhi

North East

CC/478/2014

Shri Devender Kumar - Complainant(s)

Versus

Microsoft Mobile Device - Opp.Party(s)

10 May 2018

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. 478/14

                          

In the matter of:

 

	Devender Kumar A-73, Gali No. 06, Lotus Gali Village Gokulpur, Delhi-110094.	Complainant
	Versus
1.         2.	Microsoft Mobile Device S.P.Infocity, 1st and 2nd Floor, Tower-A, Plot No. 243, Dundahera, Udyog Vihar Industrial Area, Phase-1, Gurgaon-122016.   Infinity Retail Ltd/ Croma Retail Plot No. C-53, Preet Vihar, Vikas Marg, New Delhi-110002.	Opposite Parties

 

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

01.12.2014 08.05.2018 10.05.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that he had purchased Nokia Lumia 1320, black mobile phone bearing IMEI No. 359179056553075 manufactured by OP1 from OP2 on 09.10.2014 vide invoice                   No. SLF02A089020016719 for a sum of Rs. 19,319/-. The complainant started facing problem with the said handset like hanging problem, camera, photos, videos function and phone getting switched on and off during live calls and other problems for which the complainant contacted the customer care of OP2 which asked him to visit the Nokia service centre as it was their responsibility to repair the handset. Therefore, the complainant had visited the OP’1 service centre Star Communication, Dilshad Garden on 13.10.2014 which updated the software of the handset by latest version and returned the handset to the complainant. However, after a week the problem in the handset again arose for which the complainant went to the service centre on 21.10.2014 and this time the complainant insisted on opening a jobcard so that his complaint may get registered but the service centre of OP1 once again simply updated the software and handed over the handset to the complainant in half an hour. On 27.10.2014, the complainant again visited the service centre due to persistence of problem in the handset on which date, finally the service centre of OP1 took the handset after diagnosing defects therein and issued a service jobsheet bearing No. 147433527/141027/015 and kept the handset with them. The complainant has further stated that he received a call from the said service centre on 14.11.2014 asking him to collect the same as they have rectified some hardware issues in the handset and have replaced the malfunctioned part therein which the complainant stated was the motherboard of the said handset. On hearing this, the complainant asked the service centre of OP1 to replace the handset as the same had manufacturing defect but the OP1 denied as replacement is against company policy. The complainant has stated that since 27.10.2014 the subject mobile handset is with the service centre of OP1. The complainant wrote a letter to manager of OP1 on 20.11.2014 intimating his grievance regarding the subject handset and the repeated upgradation of software and replacement of hardware which has caused lot of inconvenience and discomfort to the complainant and asked for refund of the payment made by the complainant towards the said handset. However, despite receiving  calls from OP1 on 25.11.2014 and 28.11.2014 to consider the problem of the complainant, OP1 finally informed the complainant of the decision not to replace the handset. Therefore the complainant was constrained to file the present complaint finding no efficacious remedy for gross negligence by OPs in supplying defective mobile and causing severe mental pain and agony, physical and mental harassment and prayed for issuance of directions by this Forum to the OPs to pay the full amount of the mobile handset to the tune of Rs. 19,319/- to the complainant alongwith Rs. 25,000/- as litigation charges + Rs. 5,000/- as stationery charges and Rs. 25,000/- mental and physical harassment caused to the complainant due to manufacturing defects in the mobile.

Complainant has annexed copy of the invoice of the purchase of the mobile from OP2, copy of service jobsheet with service centre of OP1 and letter dated 20.11.2014 to the manager of OP1.

2. Notice was issued to the OPs. None appeared from OP2 despite service effected on 15.12.2014 therefore it was proceeded against ex-parte vide order dated 10.04.2015. OP1 appeared on 18.09.2015 when copy of complaint alongwith all annexures were supplied to counsel for OP1 with directions to file written statement on 28.10.2015. On 28.10.2015 OP1 sought further extension to file reply and was granted last opportunity to file written statement on 30.11.2015. However, on 30.11.2015 OP1 again sought adjournment to file written statement which was allowed subject to cost of Rs. 1,000/- payable to the complainant and further time was granted to OP1 to file written statement on 07.01.2016 when OP1 filed written statement and paid cost of Rs. 1,000/- to the complainant.  
3. However, the OP1 filed its written statement on 07.01.2016 after a delay of 63 days whereas the maximum permissible limit of 45 days as per the statutory mandate under CPA expired on 03.11.2015 (from 18.09.2015 when the copy of complaint alongwith annexures was received by counsel of OP1). The Hon’ble Supreme Court in New India Assurance Co. Ltd Vs Hilli Multipurpose Cold Storage Pvt Ltd I (2016) CPJ 1(SC) = ix (2015) SLT 692 = Civil Appeal Nos. 10941-10942 of 2013 has opined that the statutory period of 45 days prescribed in the act for filing the written version cannot be extended under any circumstances, and the consumer fora would be well advised to be extra careful in recording its satisfaction regarding service of notice on the OP. The Hon’ble NCDRC in Country Colonisers Pvt Ltd vs Sunil Goel I (2017) CPJ 270 (NC) had also given its observations on the above mentioned landmark judgment passed by the Apex Court. Further the Hon’ble National Commission in Dr. Rabindra Nath Jana vs Alpana Bera Sasmal and Ors. II (2017) CPJ 170 (NC) has held that consumer fora has no jurisdiction to extend the period of the limitation of 30 days provided under section 13 (2) (a) of CPA beyond a further period of 15 days.  Therefore, in light of law settled and as per clear directions laid under section 13 (1) (a) read with section 13 (2) (a) of CPA, we strike off the defence of the OP1 off the records in the present case which includes its written statement and evidence by way of affidavit.
4. Since we have already struck off the defence of OP1, we shall not deal with the rejoinder filed by the complainant to the written statement filed by OP1.
5. Evidence by way of affidavit was filed by the complainant delineating his grievance in his complaint and written arguments were filed by the complainant as well as OP1. However OP1 did not appear after January 2017.
6. Complainant filed judgments in support of his claim / grievance and addressed oral arguments.
7. We have heard the arguments forwarded by the complainant and have perused the documentary evidence placed on record in support of his case/defence.

It is evident from the documentary evidence that the subject handset was purchased by the complainant on 09.10.2014 and the defects therein arose within less than three weeks of purchase going by the jobcard issued by the service centre of OP1 and before that also repeatedly, the software of the said handset was updated by OP1 and finally the motherboard of the subject mobile was changed in November 2014 which proves that there were inherent manufacturing defects. The OP1 and OP2 being the manufacturer and seller / retail outlet are therefore guilty of deficiency of service for manufacturing and selling defective mobile phone to the complainant and refusing to replace or refund the price of the mobile to the complainant.

8. We therefore, direct OP1 and OP2 jointly and severally to refund Rs. 19,319/-to the complainant towards the cost incurred by the complainant for purchase of Nokia Lumia 1320 mobile handset. We further direct the OPs jointly and severally to pay Rs. 10,000/- for mental and physical harassment caused to the complainant due to manufacturing defect in the product and Rs. 5,000/- towards litigation charges to the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order, failing which OPs shall be liable jointly and severally to pay penal interest @ 9% on the total awarded amount of Rs. 34,319/- from the date of order till realization to the complainant. 
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 10.05.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

On Leave (Ravindra Shankar Nagar) Member