Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 482.
Instituted on : 20.10.2015.
Decided on : 05.04.2016.
Anamika d/o Sh. Rampal, r/o village Garhi Sampla, Teh. Sampla, Distt. Rohtak.
………..Complainant.
Vs.
- M/s Anmol Communication, Shop No.2, Ashok Plaza, Near ICICI Bank Rohtak through its Proprietor.
- Swastik Systems, Shop No.7 Bapu Asha Ram Complex, Chhotu Ram Chowk, Rohtak service center of HTC Mobiles through its proprietor.
- Managing Director, H.T.C., India Pvt. Ltd. G-4 BPTP Park Centre, Sector-30, Near N.H.-8, Gurgaon.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. Pawan Rohilla, Advocate for the complainant.
Opposite party No. 1 & 3 exparte.
Sh. Ram Kumar A.R. for opposite party no.2.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that she had purchased a mobile set from the opposite party no.1 of HTC company bearing IMEI No.356530060863012, 35653006105021 and Model No.HTC Desire 620G on dated 05.01.2015 for Rs.16200/-. It is averred that after sometime the mobile set started to hang, it was found auto switched off many times in an hour. The sensors and power key of the mobile were not working properly. The complainant visited the customer care centre of opposite party no.2 on 25.03.2015 and the customer care repaired the mobile phone but after sometime again the same problem started in the mobile set. It is averred that complainant deposited the mobile set with the opposite party no.2 on 06.10.2015 but despite repeated requests and visits to the service centre of the company, the problem could not be resolved. It is averred that complainant requested the opposite parties either to replace the set with a new one or to refund the price but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to refund the price of mobile set to the complainant alongwith compensation on account of mental agony, harassment and financial loss to the complainant.
2. On notice opposite parties no.1 & 2 appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that opposite party no.1 is only the authorized dealer and the replacement and repair under warranty will be done by the company authorized service centre i.e. opposite party no.2. It is averred that the handset sold by the answering opposite party to the complainant was brand new and sold in intact position. It is averred that the complaint against opposite party no.1 may kindly be dismissed having no merits.
3. Opposite party no.2 in its reply has submitted that the complainant visited the shop of opposite party no.2 on 23.03.2015 and asked to update the “latest software update only” saying that sometimes phone gets hang. However the complainant could not prove or show hang problem. It is averred that complainant again visited the collection point on 6th October 2015 and told the “Hanging, heating and battery issue” but despite the repeated request of the opposite party did not deposit the set for further action by the company on the plea to provide alternative set for use. It is averred that the set in question was working properly and there is no deficiency in service on the part of answering opposite party. Opposite party prayed for dismissal of the complaint with cost. However opposite party no.3 did not appear despite service and were proceeded against exparte vide order dated 24.11.2015 of this Forum and opposite party no.1 was also proceeded against exparte vide order dated 01.02.2016 of this Forum.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C3 and has closed his evidence. On the other hand, opposite party no.2 tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R2 and has closed his evidence.
5. We have heard ld. Counsel for the complainant and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile set on 05.01.2015 for a sum of Rs.15200/- as is proved from the bill Ex.C1 and as per job sheet Ex.C2/Ex.R1 the problem in the handset appeared on 23.03.2015 and the software was updated. As per delivery challan Ex.C3/job sheet Ex.R2 also there were issues like “hanging issue, heating issue and battery consume itself issue” in the alleged mobile set which appeared just after within 3 months of purchase of mobile. As per complaint and affidavit filed by the complainant it is submitted that the alleged mobile was defective and she made so many complaints with the opposite parties but the same has not been repaired or replaced by the opposite parties which amounts to deficiency in service on their part. On the other hand contention of opposite party no.2 is that there was no problem in the handset in question.
7. After going through the file and hearing the parties it is observed that as per contention of the opposite party there is no problem in the handset in question but to prove its contention no expert report has been placed on record by the opposite party. It is also on record that the opposite party no.3 had not appeared before this Forum and has failed to defend the allegations leveled by the complainant and as such it is presumed that opposite party no.3 has nothing to say in the matter. Therefore all the versions put forth by the complainant regarding manufacturing defect in the alleged mobile set stands proved. In this regard reliance has been placed upon the law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which is applicable on the facts and circumstances of the case it is observed it is a fit case where the refund of price is justified.
8. In view of the facts and circumstances of the case, it is observed that the manufacturer is liable to refund the price of mobile set. As such it is directed opposite party No.3 i.e. manufacturer shall refund the price of mobile set i.e Rs.15200/-(Rupees fifteen thousand two hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 20.10.2015 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to hand over the mobile set in question to the opposite parties. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
05.04.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
