Punjab

Ludhiana

CC/14/545

Davinder Singh - Complainant(s)

Versus

M/s Gupta Music Cafe - Opp.Party(s)

Sandeep Seth

27 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

       C.C. No: 545 of 08.08.2014                Date of Decision:27.02.2015

Davinder Singh Panesar aged 35 years son of Sh.Jasbir Singh resident of 3394, Gurcharan Park, Near New Model Town, Ludhiana. 

……Complainant

                                                    Versus          

1.M/s Gupta Music Café, Shop No.1, Hotel Lee Clasic Tower, Mata Rani Road, Ludhiana through its authorized signatory/proprietor/partner/Manager.

2.M/s Cell Tech India, HO, 5024, near Baba Than Singh Chowk, Samrala Road, Ludhiana, through its authorized signatory/proprietor/partner/Manager.

3.M/s Micromax Informatics Ltd.(Imported by and Manufactured exclusively for), 21/14A, Phase-II, Naraina Industrial Area, Delhi-110028, through its authorized signatory/Managing Director(Manufacturer of the product).

4.M/s Micromax Customer Care Officer, Micromax Informatics Ltd, 21/14A, Phase-II, Naraina Industrial Area, Delhi-110028,(Registered Customer Care Center).

                                                                             ……...Opposite Parties

        Complaint under section 12 of the Consumer Protection Act,1986.        

 

Quorum:     Sh.R.L.Ahuja, President.                 

                   Sh.Sat Paul Garg, Member.

                   Ms.Babita, Member.

 

Present:       Sh.Sandeep Sethi, Adv, for complainant.

Sh.Dalip Kumar Sareen, Adv, for OP1.

OP2 ex-parte.

Sh.Rishi Bansal, Adv. for OP3 and OP4.

                   ORDER

R.L.AHUJA, PRESIDENT

 

1.                Complainant Sh.Davinder Singh, has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (herein-after in short to be described as ‘Act’) against M/s Gupta Music Café, Shop No.1, Hotel Lee Clasic Tower, Mata Rani Road, Ludhiana through its authorized signatory/proprietor/partner/Manager and others(herein-after in short to be described as ‘Ops’)- directing them to refund the amount of the tab i.e.Rs.6700/- alongwith compensation of Rs.50,000/- for mental pain, agony and harassment faced by the complainant and other benefits to the complainant.

2.                In brief, the case of the complainant is that believing the assurances and representations made by the Op1 while showing one company tab Micromax, the complainant had purchased one tab Micromax Model NO.P360(Funbook talk) bearing IMEI No.911303000407375 from OP1 vide bill No.14200 dated 19.8.2013 with warranty of one year as assured by the Ops. The complainant came home after buying the tab and started using the same. However, after the purchase, the said tab started giving problem in its display and touch screen of the tab which was not working and moreover, the tab itself stop working, to which, the complainant approached OP2 and narrated the entire incident, where, OP2 had issued manual job sheet bearing No.1097 dated 23.10.2013 and job No.626328657 and the officer present assured to rectify the problem within 48 working hours. After lapse of 48 hours, the complainant had made call to OP2 and requested whether he can come to collect the tab which was given by the complainant but the official linger on the matter on one pretext or the other. The complainant keep on calling OP2 for more than two months but the officials of OP2 did not listen the genuine requests of the complainant and after the lapse of almost two months, the OP2 handed over the abovesaid tab back to the complainant. As the touch screen of the tab was not working and the complainant again deposited the same with OP2 vide job sheet dated 9.1.2014 and Op2 again assured to handover the tab after solving the problem within 48 hours but with the same result and after the lapse of 3 months, the OP2 handed over the abovesaid tab back to the complainant. Soon after, the lapse of 15/20 days, the abovesaid tab started giving the battery problem, display problem and the touch screen of the tab was not working and the complainant again deposited the same with the OP2 vide job sheet dated 21.4.2014, who again assured to handover the tab after solving the problem within 48 hours. The complainant keep on calling OP2 for more than 4 months but the officials of OP2 again did not listen to the genuine requests of the complainant and still holding the abovesaid tab with them and openly proclaimed that the tab is suffering from manufacturing defect and only manufacturer of the product can change or refund the abovesaid tab as they are having no other remedy to repair the tab. Thereafter, the complainant approached OP3 and OP4 through emails but they failed to give respond to the same. Thus, Ops intentionally and deliberately did not return back the abovesaid tab which is illegal and unfair trade practice towards the complainant. Hence, this complaint.

3.                Upon notice of the complaint, OP1, OP3 and OP4 were duly served and appeared through their respective counsels and filed their separate written replies, whereas, despite service through notice, OP2 failed to appear and was proceeded against ex-parte vide order dated 10.09.2014 by this Forum.

4.                Op1 filed the written reply through Sh.Dalip Kumar Sareen, Advocate, in which, it has been submitted in the preliminary objections that the present complaint against the answering OP is not maintainable as the complainant has no cause of action to file the same against the answering OP. The complainant is estopped by his own act and conduct from filing the present complaint against the answering OP. The complainant after seeing, choosing and reading the conditions of the bill which postulated that guarantee/warranty valid in service centre, himself had purchased the tab in question. Thus, the complainant has not come to this Hon’ble Forum with clean hands and is guilty of suppression of material facts. On merits, it is submitted that the complainant had approached the answering OP and out of various brands of products available in the shop of the answering OP, the complainant had selected of his own, purchased Micromax Tab and the answering OP while issuing the cash memo, delivered the product and clearly told the complainant that answering OP is not responsible for warranty of the sold tab and after showing the condition mentioned in the cash memo dated 19.8.2013, guarantee warranty valid in service centre of the company of Micromax and after going through and admitting the terms of sale of the tab, the answering OP had delivered the tab to the complainant and thereafter, purchase of the tab, the complainant never approached regarding the defect of any kind with regard to the sold item till today, which clearly means and implies that answering OP is in no way, in the picture. At the end, made prayer for dismissal of the complaint against the answering OP.

5.                Op3 and OP4 filed the separate written reply through Sh.Rishi Bansal, Advocate, in which, it has been submitted in the preliminary objections that the present complaint is a gross abuse of the process of law, totally uncalled for and not maintainable in law. The answering Ops never denied to provide its after sale services to the complainant as assured under the terms of the warranty and still ready to provide the same subject to the terms and conditions of the warranty. The complainant had purchased the tablet on 19.8.2013 and approached to the authorized service centre of answering Ops for repair of the tab on 9.1.2014 and the authorized service centre had repaired the tab and return to the complainant. Second time, the complainant had approached to the authorized service centre on 21.4.2014 for battery problem after using the product for more than 8 months and the authorized service centre repair the tab and intimated to the complainant to collect the handset but the complainant was not interested to collect the same and raising illegal demands. The complainant filed the present complaint just to pressurize the answering Ops to meet his illegal demands. The complainant’s allegations of major defect in the tablet without adducing any documentary evidence whatsoever, is false and baseless. Rather, it is submitted that the complainant has failed to produce any documentary evidence on record to support his allegation of defect in the tablet and also failed to adduce any expert report and or documentary evidence to support his allegation of defect in the tablet. Complainant’s case is sheer reflection of misuse of the tablet, hence, the answering Ops cannot be held responsible for irresponsible and careless and negligent handling of the tablet. The warranty period covers the range of faults that ensue normally from mechanical functioning of the tablet without any interference or outside influence. The limited warranty document is a part of the user manual and is inserted in every package of a Cellular Phone by answering Ops and is a caveat to the buyer and the answering Ops relies upon the same and it clearly provides that the tablet will be repaired “free of charges” by the answering Ops, if it is covered under warranty. Further, replacement as per the limited warranty terms is limited only to those cases where repair is not possible and or where there is a genuine problem of repeated repairs of the same problem. The complainant has not approached this Hon’ble Forum with clean hands. Further, it is submitted that the answering Ops are ready and willing to redress the grievance of the complainant but the question of replacement of tab/refund of the sale price and/or any compensation does not arise at all. On merits, similar pleas were taken as taken in the preliminary objections and at the end, denying any deficiency in service and all other allegations levelled by the complainant in his complaint against the answering Ops being wrong and incorrect, answering OPs made prayer for dismissal of the complaint with costs.

6.                In order to prove the case of the complainant, the learned counsel for the complainant tendered into evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the allegations made by him in the complaint. Further, learned counsel for the complainant has proved on record the documents Ex.C1 to Ex.C4.

7.                On the other hand, in order to rebut the case of the complainant, learned counsel for the OP1 adduced evidence by placing on record affidavit Ex.RA1 of Sh.Parmod Kumar, its Sole Proprietor, in which, he has reiterated all the contents of written reply filed by OP1 and refuted the case of the complainant. On the other hand, Op3 and Op4 failed to adduce their evidence despite granting numerous opportunities in this regard and as such, evidence of OP3 and OP4 was closed by order vide order dated 23.2.2015.

8.                We have heard the learned counsel for the complainant as well as learned counsel for OP1 and OP3 and OP4 and have also perused the record on the file very carefully.

9.                It is an admitted fact between the parties that the complainant had purchased the Tab in question i.e.Micromax Model No.P360 from OP1 after paying an amount of Rs.6700/- vide retail invoice No.14200 dated 19.8.2013 Ex.C1. The aforesaid tab is having warranty of 1 year from the date of billing as per the assurance given by the OP1 to the complainant at the time of purchase of the tab in question. As per the allegations of the complainant that the aforesaid tab started giving problem qua its display and touch screen was not working and stop working itself, due to which, the complainant was facing problem in using the tab in question and he had approached the OP2 for its repair for twice which is evident from the copies of job sheets Ex.C2 & Ex.C3 placed on record by the complainant. However, despite repair by the OP2, the problems remain persisted. Thereafter, again the complainant had deposited the tablet with OP2 with the problem of display show lines problem with battery problem on 21.4.2014 which is evident from copy of job sheet Ex.C4 and as per the allegations of the complainant, despite long time waited and despite repeated visits with the OP2 and despite sending emails to OPs, the tab was not returned after repair to the complainant and made prayer for refund of amount of the tab alongwith compensation for harassment and mental pain suffered by him.

10.              Though, during the course of arguments, learned counsel for the contesting Ops not denied the approaches made by the complainant with the service centre of Ops for repair of his tab in question. However, it has been contended that the complainant has failed to prove on record any expert opinion qua the manufacturing defect in the tab and the same needs replacement or the complainant is found to be entitled for the refund of the same.

11.              Though, perusal of the record reveals that the complainant has not placed on record any such documents as contended by the learned counsel for the contesting Ops. But the learned counsel for the contesting Ops have not denied the sale of the tab in question of the Op1 to the complainant and further, they have not denied the warranty of the tab in question when the same was given  by the complainant for repair to Op2. Since, it is a well settled principle of law that during subsistence of the warranty period, Ops are under an obligation to provide the services of the repair of the product to the person like the present complainant without any costs. If the tab of the complainant suffers from any defect, it is the legal obligation of the Ops to carry out the necessary repair in the same and make the same proper functional to the entire satisfaction of the complainant.

12.              In view of the above discussion, we hereby allow this complaint and as a result, direct the Ops to carry out the necessary repair in the tab of the complainant by repairing or replacing the defective parts of the same without any costs and make the same proper functional to the entire satisfaction of the complainant and to handover the same to the complainant within 10 days from the date of receipt of the copy of this order and further, if the tab of the complainant is not repairable by replacing or repairing the defective part, then in that eventuality, the Ops are directed to replace the tab of the complainant with new one of the same make and model without any cost or in the alternative, to make the refund the price of the tab in question to the complainant. Further, Ops are directed to pay compensation and litigation costs compositely assessed at Rs.1500/-(Fifteen hundred only) to the complainant. Compliance of order qua compensation and litigation costs be complied within 30 days from the date of receipt of copy of this order. Copies of the order be sent to the parties free of cost and thereafter, file be consigned to the record room.

 

  (Babita)                        (Sat Paul Garg)                        (R.L.Ahuja)

  Member                       Member                                  President.  

Announced in Open Forum

Dated:27.02.2015

Gurpreet Sharma.