BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 185 of 2017.
Date of Instt.:04.08.2017.
Date of Decision: 23.05.2018.
Deepak Batra son of Sh. Jaswant Rai, resident of House No. 138, ward No. 16, Nahar Colony Ratia, District Fatehabad.
...Complainant
Versus
- M/s Chopra Mobile Zone, Sanjay Gandhi Chowk, Ratia, through its proprietor/partner.
- M/s Golden Telecom, MI Service Centre, Green Square Market, Hisar through its proprietor/partner.
- Xiaomi Technology India Pvt. Ltd., 8th floor, Tower I, Umiya Business Bay, Marathahalli- Sarjapur, Outer Ring Road, Bangalore, Karnataka, through its Signatory.
..Opposite Parties.
Before: Sh. Raghbir Singh, President.
Sh. M.K. Khurana, Member.
Present: Sh. N.K. Malik, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for OP no. 3.
OP no. 1 and 2 already ex-parte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the opposite parties with the averments that he purchased a mobile handset of MI Company MI 3S for an amount of Rs.7500/- on 10.1.2017 vide invoice No.88 from OP No.1 and the aforesaid cost of the mobile was paid by the complainant. OP No.2 is Authorized Service Center of the mobile and OP No.3 is manufacturer of the mobile handset. Therefore the complainant is consumer of Ops as provided in the Consumer Protection Act, 1986.
2. It is further submitted that after using the said mobile for a few months, the same did not work properly and problem of heating the board of the mobile and not having network occurred. On this complainant approached to OP No.1and narrated about the problem in the handset then OP No.1 gave the address of OP No.2 being authorized care center of the company. Consequently the complainant approached to OP No.2 in the month of May, 2017 and informed him regarding the problems in the handset. OP No.2 kept the mobile with him for 2 - 3 days and thereafter returned the same by temporarily removed the aforesaid problems. However at that time no job-sheet was issued to the complainant by OP No.2. It is further submitted that after a few days the aforesaid problems started to occur in the handset and the mobile started to get switch off automatically during the use. Therefore the complainant again visited to OP No.2 on 7.6.2017 and complained him about the problems of heating, non-functioning of network and problem of switch off during use. OP No.2 kept the mobile with him and issued a job-sheet. Thereafter the complainant visited to OP No.2 several times for getting the mobile after repair but every time he was asked by OP no.2 to visit again to get the handset back. Thereafter, OP No.2 informed to the complainant that the mobile handset in question is having a manufacturing defect. However the said mobile was never handed over back to the complainant.
3. It is further submitted that thereafter the complainant requested Ops No.1 and 2 for replacement of the mobile or refund the original cost amounting to Rs.7500/-, but all in vain. The above said act on the part of Ops amounts to deficiency in rendering service to the complainant. The complainant has further prayed that the Ops may be directed for refund of the original cost of the mobile alongwith compensation of Rs.20,000/-. Hence, the present complaint.
4. On being served OP No.3 appeared through its counsel and resisted the complaint by filing a reply wherein various preliminary objections with regard to maintainability, cause of action, concealment of material facts and jurisdiction etc. have been raised.
5. In reply on merits, it is submitted that the mobile handset in question was purchased by the complainant from OP No.1. It is further submitted that the mobile in question was sold to the complainant under warranty terms. It is further submitted that on 7.6.2017 the complainant approached OP No.3 in connection with defects in the product. The technicians of OP No.2 duly collected the product for technical examination and a job-sheet was issued to the complainant. After examination the product it was ascertained that the mobile handset had suffered liquid damage. Since, case of liquid damage is not covered under the standard warranty terms and condition as such the complainant was asked to pay repair cost of the mobile handset. However the complainant refused to pay the repair cost and left the handset at the service center. Therefore there is no deficiency on the part of Ops in rendering service to the complainant. The OP no.3 in support of his case has relied upon the judgments cited as (2006) 4 SCC Page 644, (1996) 4 SCC Page 704.
6. The Ops in its reply denied all the allegations made in the complaint and further prayed that the present complaint is without any merits and the same is liable to be dismissed.
7. Despite proper service Ops No.1 and 2 did not appear before this Forum and as such they were proceeded ex-parte on 7-9-2017.
8. The learned counsel for the complainant tendered in evidence the affidavit of the complainant as Annexure C1 and the documents as Annexures C2 and C3 and closed the evidence of the complainant. On the other hand Sh.Sameer BS Rao, Authorized Representative filed his affidavit as Annexure R1 in evidence on behalf of OP No.3. OP No.3 also tendered in evidence the documents as Annexures R2 to R7 and closed the evidence.
9. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of the complainant that the mobile handset purchased by him from OPs got defected/ disfunctional within the period of warranty given by the OPs. The defect in the mobile was a manufacturing defect and as such he is entitled for refund of the original cost of the mobile amounting to Rs.7500/- alongwith compensation.
10. On the other hand, it is case of the OP no.3 i.e. the contesting party that the product/ handset suffered from liquid damage and as such the same was not covered under terms and conditions of warranty. Therefore the complainant was asked to pay the cost of repair. However the complainant refused to pay the cost of repair and left the product in office of Op No.2. Therefore there is no deficiency on the part of Op No.3 in rendering service to the complainant.
11. After examining the pleadings and evidence of the parties placed on record and considering the arguments, we are of the opinion that the complainant has not been able to prove any deficiency on the part of OPs in rendering service to him in the present case. It is alleged by the complainant that the handset in question suffered from manufacturing defect. Therefore as per settled principle of law the onus was upon the complainant by producing cogent and convincing evidence or by opinion of expert that the handset was suffering from manufacturing defect. However no evidence has been produced by the complainant to prove that the handset suffered a manufacturing defect. It is also a settled proposition of law that in absence of opinion of expert or cogent evidence that a product was suffering from manufacturing defect, the manufacturer cannot be ordered to replace the product or refund the price of the same. Therefore in absence of opinion of expert the case of the complainant to refund the original cost of the handset is not made out.
12. On the other hand, the Op No.3 has placed on record the job-sheet dated 07.06.2017 (Annexure R-2). A perusal of the same reveals that the handset in question had suffered liquid damage. The complainant has not produced any evidence to rebut the Annexure R-2. The warranty conditions associated with the mobile handset has excluded physical damage from the scope of warranty. Therefore by any stretch of imagination the defect in the handset in question cannot be termed as a manufacturing defect. Therefore there is no deficiency on the part of OPs in demanding cost of repair from the complainant.
13. In view of the aforesaid discussion, the present complaint is without any merits and as such the same is hereby dismissed with no order as to costs. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.23.05.2018.
(M.K. Khurana) (Raghbir Singh)
Member President
DCDRF, Fatehabad.
