( Passed on dated 26th August, 2015 )
Per Shri Atul D. Alsi – Hon’ble President.
The opposite party No.1 is the importer of HTC Mobile phones in India and opposite party No.2 and 3 are the customer care service and service centre of the HTC mobiles run by opposite party No.1. The opposite party N.4 is the local dealer of the HTC Mobiles.
2. The complainant on 14/05/2014 had purchased a cellular phone HTC Desire XC dual sim T329d, having black colour from opposite party No.4 “Mobile Plaza” for consideration of Rs.16,300/-. The mobile used to hang repeatedly and there was booting problem also. Thereafter, the complainant many times contacted with the opposite party No. 4 for mobile handset. The opposite party No.4 informed to the complainant that the mobile handset is sent to the opposite party no. 3 for repairing.
3. The terms of warranty opposite parties is supposed to replace the said mobile handset to the complainant. There was a manufacturing defect in the mobile handset and it is beyond repair and hence the complainant requested to opposite party for replacing the mobile handset as per the terms of warranty and guarantee.
4. Therefore, on 22.12.2014 and on 24.12.2014, complainant sent legal notice to the opposite party seeking replacement of mobile handset. The complainant is in a business of repairing and maintaining of the Air Conditioners and running his livelihood.
5. The complainant has purchased the above said mobile handset on 14.5.2014 for a valuable consideration of Rs.16,300/- and praying to directed the opposite party to replace the above said mobile hand or in alternative, the opposite party be directed to pay the cost of the mobile handset and further. The opposite party be directed to pay the damages of Rs.500/- per day from 30/08/2014 till the replacement of mobile handset or payment of cost of mobile handset. The opposite party be directed to pay Rs.5000/- towards mental harassment and cost of litigation be saddled on the opposite party.
6. After receiving the notice issued by the Forum, the O.P. Nos. 1 to 3 did not appeared hence this forum passed ex-parte order against them. The opposite party no.4 was appeared through his advocate and filed his written statement.
7. In their reply, the O. P. No. 4 submits that, the complainant on 14/05/2014 had purchased a cellular phone HTC Desire XC dual sim T329d, having black colour from opposite party no.4 “Mobile Plaza”, for consideration of Rs.16,300/-.
8. It is further submitted in reply that the complainant on 30th August, 2014 approached the opposite party No.4 with complaint that, there is problem in display of the mobile, mobile used to hang repeatedly and there was booting problem also. After prima facie verifying that the mobile handset having defects, the opposite party No.4 sent the handset for repair to the authorized service centre of HTC mobiles at Nagpur i.e. opposite party no.3. The complainant many time visited the shop of opposite party No.4 for the mobile handset. The opposite party no.4 has also shown the job card of mobile handset to the complainant. The job card and mobile handsets are in the custody of the opposite party. Since then mobile is with service centre i.e. opposite party no.3. The employee of O.P.No.4 has also several times visited the office of O.P.No.3 for the mobile handset of complainant. Two times, the present O.P. has returned the mobile handset at the window of O.P.No.3, as the defects in the handset were not be cured.
9. The opposite party no.4 is the local dealer of the HTC mobile and has no role to play in replacement of the mobile handset in case of defect. It is for the opposite party No.1 to decide whether to replace the mobile during the warranty period or not in case of defect. The opposite party no.4 has promptly sent the mobile handset to the service station as soon as complainant had approached with the complaint of some defect. So far as opposite party no.4 is concerned had not committed any deficiency in service.
10. The complainant has filed Copy mobile bill at page no. 14, Copy of hTC Care Service Report at page no. 15, Copy of notice sent to opposite parties at page no. 17 & 21, Copy of hTC Care Service Report at page no. 24 on record.
11. The learned counsel for complainant Mr. S.V.Khanted had filed pursis that they didn’t want to file affidavit and written notes of argument.
12. The learned counsel for opposite party no.4 Mr. S. B. Rajankar had also filed pursis that reply may be treated as affidavit & argument.
13. Considering the rival contention of the party & submission made before us the following points arise for consideration & finding there on along with reasons.
Sr. No. | Points | Findings |
1. | Whether the O. P. has committed negligency in service? | YES |
4. | What Order? | As per final order. |
REASONING & FINDINGS
14. The complainant has filed cellular phone bill HTC XC dual sim T329d issued by local dealer having bill no.454 dated 14th May, 2014 for Rs.16,300/- and same is admitted in written statement of O.P.No.4. Hence, the complainant has purchased the mobile is proved.
15. On 30th August the complainant approached with O.P.No.4 with a problem in handset which hang repeatedly and having booting problem. The O.P.No.4 has admitted in reply that prima facie there is a problem as explained above therefore O.P.No.4 has sent for repair to authorized service station at Nagpur that means with O.P.No.3. The O.P.No.4 had shown the job card to complainant and copy of the same is filed at page no.15. The job card showing Tick No. 141 NA 440015306. The job card showing the defect in display, display not working, hanging problem and not booting and also describing that same type of problem for 3rd time. The mobile is in the custody of O.P.No.3. The complainant and O.P.No.4 several times visited O.P.No.3 but O.P.No.3 did not repaired and handed over the hand set. This fact is admitted in written statement of O.P.No.4. After several request and legal notice the O. P. Nos. 1 to 3 failed to give the repaired mobile to complainant. The defect is continuous, not removable after 3rd attempt as per evidence in job card. When the defect can’t be removed within a reasonable time then it comes under the definition of manufacturing defect. It shows that the hand set is not in condition of repairable hence it is manufacturing defect.
16. The defect arose in warranty period. So warranty is as per concise oxford English Dictionary, a written guarantee, issued to a purchaser of an article by its manufacturer promising to repair or replace it if unnecessary within a specified period. A warranty is a stipulation collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages or but not right to reject the goods and treat the contract as repudiated (pages 458, Subranmany and Singhal’s Indian Contract Act 3rd Edition, Law Book Company Ltd.).
Therefore, the O.P.No.1 who is importer of mobile liable to pay damages as prayed in alternative prayer of complainant along with O. P. Nos. 2 & 3 who are running service centre but after several requests from complainant and O.P.No.4 fails to communicate the true position of handset to complainant. Hence they are not excluded from liability. The O.P.No.4 is dealer who had performed his job by sending mobile for repair immediately hence he is excluded from liability.
Therefore, the following order is passed.
-: ORDER :-
1. The complaint is partly allowed.
2. The O.P.No.1 is directed to pay Rs.16,300/- for the cost of mobile HTC Desire XC dual sim T 329 d with 9% interest per annum from litigation admission dated i.e. 25/02/2015 till its realization.
3. The O. P. No. 1 is directed to pay Rs.5000/- towards mental torture and mental agony.
4. The O.P. Nos. 2 & 3 are directed to pay Rs. 2500/- each towards cost of litigation.
5. The above amount shall be paid within 30 days from the date of receipt of this order.
6. No order is passed against O.P.No.4.
