Jammu and Kashmir

Jammu

CC/589/2017

STATE OF J&K DY CONTROLLER - Complainant(s)

Versus

MOTOROLA SOLUTIONS - Opp.Party(s)

MOHD AMIN AWAN

26 May 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:                   78/DFJ         

 Date of  Institution       03-06-2017

 Date of Decision             18-05-2018

 

State of Jammu and Kashmir

Through Deputy Controller,

Legal Metrology Department,

Jammu.

                                                                                                                                                Complainant

                 V/S

1.Motorola Solutions  India Pvt.Ltd.,

  Motorola Excellence Centre,

 1415/2.Mehrauli Gurgaon Road,

Sector-14,Gurgaon,Haryana.

2.  Maa Saraswati Computers,

   150-A,Ist Floor, Gandhi Nagar,Jammu.

3.E-Mobiles Anjaneya Infrastructure Project No.38&39

  Soukya Road,,Kacherakanahalli Haskote,Taluka,

 Banglore,Karnataka.

4.Motorola Mobility India Pvt.Ltd.

  12 Floor Tower D DLF Cyber City,Gurgaon Haryana-122002.

                                                                                                   Opposite parties

CORAM:-

                  Khalil Choudhary   (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                       Member

                  Mr.Ghulam Sarwar Chauhan                                Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Ms Kamini Thakur,Advocate for complainant, present.

Mr.Nishan Joshi,Advocate for OP1,present.

Nemo for OPs 2,3&4.

 

 

                                                      ORDER

                          Facts relevant for the disposal of complaint on hand are that the complainant has been authorized by the Govt.of J&K to file complaints in the Hon’ble Consumer Court vide order No.01-CAPD of 2013 dated 01-01-2013 (Copy of order/authorization  letter is annexed as Annexure-A).According to complainant  he had  received a written complaint from one Satya Dev Sharma about the unfair malpractice being adopted by the Ops,and said Satya Dev had purchased a handset MOTO G Plus,4 Gen (White 32 GB)manufactured by OP1 from OP3 for a sale consideration of Rs.14,999/-through Amazon.in on,10-07-02016.Allegation of complainant is that within one month of purchase of handset, the same started malfunctioning as it was getting switched off abruptly and complainant immediately approached OP2 (authorized service centre)and apprised them about the problem and OP2 took the handset for repair and rectifying the defect in the said handset. Complainant further submitted that OP2 assured  him that the defect in the  handset will be removed within a period of two days, but OP2 did not issue any job card and after two days OP2 handed over the handset to the consumer, but the handset was not rectified and the problem in the handset was neither removed nor rectified still persisted. That the consumer again approached OP2 and apprised him about the malfunctioning of the handset being not rectified and OP2 took the handset of consumer and made him to sit in the waiting lounge and after 4-5 hours returned the handset to the consumer with the assurance that the inherent defect in the handset was removed and he will not face the same problem. Further submission of complainant is that on,03-11-2016 the same problem persisted and consumer again approached OP2 for getting the defect in the handset rectified, who told the consumer that it will take more than 15 days to remove the said defect in the handset as the handset has to sent to headquarters of OP2(copy of job card Annexure-D).Allegation of complainant is that after 15 days he approached OP2 for getting the handset back, the OP2 made him to wait for 2 hours in their office and thereafter told him that it will take another 15 days to remove the defects,however,even after a lapse of 15 days they did not give back the handset to the consumer and after a lapse of another 15 days the handset was given back to the consumer, but when he reached his home and started using the said handset, it again started malfunctioning and now a new defect persisted as the speaker phone of the handset stopped working ,the consumer again approached OP2 and apprised them of the problem, who told him that it is a software issue and they will update it and assured him that he will not face the same problem again. Complainant further submitted that the consumer took his handset back from OP2 and started using it, but to the utter dismay of consumer the problem in the handset still persisted. Further allegation of complainant is that the consumer repeatedly approached OP2 but the handset was not made functional and the said handset is still lying in the custody of OP2 and this act of Ops constitutes deficiency in service and unfair trade practice. Hence the present complaint. In the final analysis, complainant prays for refund of cost of handset to the tune of Rs.14,999/-alongwith interest @ 18% per annum and in addition also prays for compensation of Rs.80,000/-including litigation charges.

       On the other hand,OP1 filed written version and resisted the complaint on the ground that the Applicant herein is a company duly registered under the Companies Act,1956 and continues the legacy of M/S Motorola India Private Limited. The Applicant is in the business of data communications and is telecommunications equipment provider.However,the Applicant has no relation whatsoever with the business of manufacturing mobile phones. It is submitted that Respondent No.1 herein has filed a consumer complaint against a wrong entity. It is submitted that M/S Motorola India Private Limited spun off its cellular phones business into a separate company named M/S Motorola Mobility India Private Limited in 2011,which is now a subsidiary of Lenovo.The Applicant,which continues the legacy of M/S Motorola India Private Limited, and the company which manufactures mobile devices viz M/S  Motorola Mobility India Private Limited are two distinct and separate entities. The fact that the Applicant herein and the company which manufactures mobile devices are two distinct and separate entities, having different directors could be ascertained from the records of Ministry of Corporate Affairs(MCA).It is further submitted that M/S Motorola  India Private Limited transferred its mobile devices business to M/S Motorola Mobility India Private Limited in 2010.The scheme was duly approved by the Hon’ble High Court of Punjab and Haryana vide an order dated 17.09.2010.The entire business of manufacturing mobile devices is dealt by a separate entity named M/S Motorola Mobility India Private Limited.Also,the Applicant and M/S Motorola Mobility India Private Limited are not even sister concerns anymiore as M/S Motorla Mobility India Private Limited was bought by Lenovo in 2013.

 

                                In so far as OPs 2,3& 4 are concerned, despite notice did not take any action to represent their  case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period, provided under the Act. Thereafter, the right of the OPs,2,3&4 to file reply was closed by this Forum.

                          Complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Satya Dev Sharma. Complainant has placed on record, copy of complaint, copy of tax invoice, copies of job sheets and copy of show cause notice issued by Joint Controller Legal Metrology Jammu to OP2.

                          We have perused case file and heard L/Cs appearing for the parties at length.

                  To be brief, allegation of complainant is that he purchased handset manufactured by OP1,but after few months from its purchase, handset was marred by defects,however,despite repeated requests,OPs failed to remove  the alleged defects. On the other hand,Ops,2,3&4 despite service of notice, did not choose to defend themselves before the Forum,therefore,their right to file written version was closed by this Forum.                  

                    In so far as, allegation of complainant regarding defects in the handset are concerned and failure of OPs,2,3&4 to remove alleged defects, same went unchallenged from OPs,2,3&4 side.

                 In support of his allegations, complainant filed his own duly sworn evidence affidavit and affidavit of Satya Dev Sharma which are verbatim reproduction of contents of complaint, therefore, need no reiteration. Complainant has also placed on record copy of bill, copies of job cards and copy of show cause notice.            

               On the other hand, OPs,2,3&4 despite being duly served, failed to take any action to represent their case in this Forum, either to admit the claim of the complainant or to deny it, so there is no reply filed by OPs,2,3&4 in this complaint and there is also no evidence to rebut the case of the complainant. The present case of the complainant is covered by Section 11 (2) (b) (ii)of the Consumer Protection Act,1987, which provides that in a case where the OPs 2, 3&4 omits or fails to take any action to represent their case within the time given by Forum, in that situation the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-Clause (ii) of the Section 11, of Act of 1987, clearly, provides that when OPs 2,3&4 omits or fails to take any action to represent their case before the Forum, the dispute has still to be decided on the basis of the evidence brought to its notice by the complainant.

                      From perusal of the documentary evidence and affidavit filed by complainant, it is found that complainant has succeeded in proving his case, against OPs,2,3 &4 despite making repeated requests, therefore, a case is made out by complainant for deficiency in service on the part of OPs2, 3&4,in not redressing his grievance. From perusal of complaint, as well as, evidence affidavit of complainant  and his witness, we find that complainant has suffered unnecessarily as the handset was not made functional, as such the handset of the complainant suffered from manufacturing defect .

                  Therefore, in view of aforesaid discussion, we are of the opinion that the complainant has succeeded in proving deficiency in service on the part of OPs.,as such,OPs 2,3&4 are directed to refund cost of handset to the tune of Rs.14,999/-to the complainant. OPs 2,3&4 are further directed to pay Rs.10,000/-as compensation for mental agony and harassment and litigation charges of Rs.5000/-to the complainant. The awarded amount be deposited by OPs 2,3&4 in this Forum within one month from the date of receipt of this order.Copy of this order be provided to the parties free of costs. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Announced                                                 (Khalil Choudhary)                                        

 18-05-2018                                                (Distt.& Sessions Judge)

 Agreed by                                                      President                                                      

                                                                       (District Consumer Fourm)

Ms.Vijay Angral                                                 Jammu.

Member

 

Mr.Ghulam Sarwar Chauhan

Member