Punjab

Ludhiana

CC/15/589

Inderjeet s/o Prahalad - Complainant(s)

Versus

M/s Ahuja Electronics - Opp.Party(s)

Nand Lal Adv.

25 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 589 of 05.10.2015

Date of Decision            :   25.11.2016

 

Inderjeet son of Prahalad Nirban aged 26 years resident of H.No.91/1, Prem Nagar, B-XIV, Islam Ganj, Ludhiana.

 

….. Complainant

                                                         Versus

1.M/s Ahuja Electronics, Shop No.2, Mata Rani Chowk, Ludhiana.

2.U.P.Telecom, ASP Code:- 1100521, Near Punjab & Sind Bank, Main Road, Sherpur, Ludhiana.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Nand Lal, Advocate 

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant purchased mobile phone of Lava IRIS PRO30Plus from OP1 on 30.9.2014 vide invoice No.R-17204 dated 30.9.2014 with warranty of one year. That mobile phone was not working properly since from beginning because it used to shut down automatically. That caused irritation and mental strain to the complainant, due to which, he approached OP1 for repair, but he referred to OP2, the service centre for that purpose. Complainant deposited his mobile with OP2 for its repair and he in turn after repair, returned back the mobile. Even thereafter, mobile phone was not working properly. Complainant again approached OP2 for repair of the mobile and he retained the same. OP2 despite possible efforts could not repair the mobile phone and the same is not functioning properly even after its repair. So, OP2 issued DOA certificate No.5100005551967 dated 11.9.2015. Complainant approached OP1 along with DOA certificate with replacement of the mobile, but OP1 refused to replace the same. Complainant approached OP1 on 21.9.2015 and presented DOA certificate for replacement. OP1 promised to return Rs.6000/-, but in fact the mobile phone was purchased for Rs.10,700/- and as such, the said offer was not acceptable by the complainant. OP flatly refused to replace the mobile phone and as such, complaint filed for directing Ops to pay the price of mobile i.e. Rs.10,700/- and even compensation of Rs.10,000/- for mental harassment and tension claimed

2.                Ops are ex-parte in this case.

3.                Complainant in ex-parte evidence tendered his affidavit Ex.CA along with documents Ex.C1 & Ex.C2 and then closed the ex-parte evidence.

4.                Written arguments not submitted, but oral arguments alone addressed and those were heard and records gone through carefully.

5.                Perusal of invoice Ex.C1 reveals that the mobile phone in question purchased by the complainant from OP1 on 30.9.2014 for consideration of Rs.10,700/-. On the footnote of this invoice Ex.C1 itself it is mentioned that guarantee/warranty valid in service centre only and goods once sold will not be returned back. In view of this two terms and conditions incorporated on the footnote of Ex.C1, it is obvious that the dealer i.e.OP1 after sale of the mobile phone in question not saddled with any responsibility of providing warranty. So, action for providing warranty to be taken by the OP2 i.e. service centre and not by OP1. In view of this, complaint against OP1 is not maintainable at all and the same is hereby dismissed.

6.                It is the case of the complainant that DOA certificate Ex.C2 was issued by OP1 and thereafter, he deposited the defective mobile set with OP1. After going through this DOA certificate Ex.C2, it is made out that DOA Sanction granted on 11.9.2015. A note appended in bold words on Ex.C2 provides that DOA certificate will not be valid after 7 days from the sanctioned date. So, validity of this DOA certificate was to lapse on 18.9.2015 because of date of sanction as 11.9.2015 put on the top of Ex.C2 itself. If validity of this DOA certificate was to lapse on 18.9.2015, then question of receipt of defective mobile on 19.9.2015 does not arise. However, on Ex.C2, it is mentioned in hand as if set is DO and besides date 19.9.2015 mentioned. It is not clearly mentioned on Ex.C2 that actually this DOA set received on 19.9.2015. However, validity of DOA certificate was for 7 days from the date of sanction of DOA and as such, the defective mobile set could not have been   received by the authorized representative of manufacturer on 19.9.2015 i.e. after lapse of validity of DOA certificate.

7.                Even in the complaint, it is not mentioned that the defective mobile set was deposited on 19.9.2015. Name of person or the designation of person, with whom, this mobile set deposited on 19.9.2015 is not at all mentioned in the complaint or in the hand written endorsement recorded on foot note of Ex.C2. Being so, the produced evidence does not at all establish that actually defective mobile set was deposited on 19.9.2015. Though in the last line of para no.5 of the complaint, it is mentioned that the mobile is with  OP1,  but  name of person or his designation not disclosed, with whom, this set was deposited on 19.9.2015.

8.                Manufacturer has not been impleaded as party in this case, despite giving of time to the counsel for complainant to file application for amendment for impleading the manufacturer as party. Manufacturer is the main person responsible for providing warranty or for replacement of the defective mobile set and as such, necessary party against whom the relief could have been granted deliberately has not been impleaded as party.

9.                Though, counsel for the complainant unable to disclose on asking by this Forum as to what is the meaning of DOA certificate, despite that by search on Google Internet, it is made out that DOA means ‘Dead on Arrival’. That Internet Track Record formed part of this file.

10.              After going through the internet search record qua DOA, it is made out that the mobile, which has developed a functional defect at the point of sale and within 90 days from RDS invoice to dealer from retailer, will be termed as Dead on Arrival. However, DOA shall not be considered under the following conditions:-

i)In case the defect is not reproduced at SVC center.

ii)Issues related to Network Service Provider.

iii)Any Software related issues.

iv)Issues related to all kind of Accessories.

The DOA certificate Ex.C2 in this case mentions as if fault is qua line of display. In view of this fault of line of display recorded in Ex.C2, the mobile set in question cannot be termed as a dead mobile phone on arrival, particularly when this DOA certificate issued on 11.9.2015 that is after more than 11 months of purchase of the mobile set in question. However, declaration of DOA could have been granted due  to developing of functional defect at the point of sale or within 90 days from RDS invoice to dealer/retailer. As this DOA certificate issued after more than 11 months of purchase by the complainant and as such, issue of this certificate itself is not in accordance with the terms and conditions of declaring the mobile as dead on arrival.

11.              Clause 4 of “condition to quality” endorsed on Ex.C2 provides that the unit to be received at the ASP within 10 days from the date of its purchase by the end-user or in case of a distributor within 90 days from the date of invoice. So, in view of this term no.4 contained in Ex.C2, the ASP could have received the set in question from the complainant (the end-user on account of purchase through invoice Ex.C1) within 10 days after 30.9.2014. However, DOA certificate Ex.C2 issued after more than 11 months of purchase and as such, this DOA certificate issued against the terms and conditions of declaration of a mobile as dead on arrival. It is on account of this that original of Ex.C2 deliberately has not been produced, albeit same bound to be available with the complainant. Moreover, as per procedure qua deposit of   the DOA sets, approval of the management of manufacturing company to be obtained and thereafter, the defective set to be sent to logistics ware house. After receipt of the units and documents, the credit to be paid to the respective SPD(ND/FD) within 21 days of submission of DOA/DAP handsets. So, virtually credit for the price of the defective set to be given by the manufacturer and not by  the dealer or service provider. Despite this manufacturer has not been impleaded as a party deliberately and as such, fault lay with the complainant in not impleading due party, despite affording of opportunities to the complainant for filing application for amendment, so as to implead the manufacturer as a party. Moreover, Ex.C2 being issued in violation of the express terms and conditions of declaration of defective mobile as DOA and as such, this document Ex.C2 is not a genuine document at all. In view of this, relief on the basis of this Ex.C2 cannot at all be granted in absence of manufacturer as a party. Relief claimed through complaint is to summon dealer and service centre for issuing directions to them to pay back the price of the mobile phone and compensation amount for mental harassment. Price can be sought back by way of credit from the manufacturer after depositing of the defective mobile phone with DOA in logistics ware house, but the same has not been done and as such, virtually the complaint has been filed for getting relief from the persons, whose liability to pay the price actually is not there. Liability to return back the price is of the manufacturer and not of the dealer or of the service centre because service centre acts as an agent of the manufacturer, whereas liability of dealer is not there in view of terms of Ex.C1 as discussed above. As per the provisions of Indian Contract Act, 1872, liability of manufacturer to remain in respect of the acts done by the agent in course of agency business. In view of this legal proposition also OP2, being agent of the manufacturer i.e. Lava Company cannot be held responsible for reimbursement of the price of the mobile. As complainant has manipulated evidence by producing on record Ex.C2 and has not impleaded the party against whom the claimed relief could have been granted and as such, complaint merits dismissal.

12.              As a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.              File be indexed and consigned to record room.

 

                   (Vinod Bala)                                       (G.K. Dhir)

                                      Member                                                President

Announced in Open Forum                                                          Dated:25.11.2016

Gurpreet Sharma.