DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 122/2015
Date of Institution : 11.06.2015
Date of Decision : 04.09.2015
Kulwinder Singh aged about 23 years son of Maan Singh resident of backside Trident Factory, Sanghera Road, Barnala, Tehsil and District Barnala (Mb. No. 78146-97318).
…Complainant
Versus
1. M/s Jindal Telecom, Near Trident Factory, Sanghera Road, Barnala through its proprietor.
2. XOLO Service Centre (Previously known as Nokia Care Service Centre), Near Kundan Sweet Shop, Sadar Bazar, Barnala.
3. XOLO Mobiles, A-56, Sector 64, Noida-201301 (UP).
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. NK Garg counsel for the complainant
Opposite party No. 1 exparte
Sh. Harpreet Singh counsel for opposite parties No. 2 and 3.
Quorum.-
1. Shri S.K. Goel : President.
2. Sh. Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI KARNAIL SINGH MEMBER):
Kulwinder Singh (hereinafter referred as complainant) has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred as Act) against M/s Jindal Telecom and others (hereinafter referred as opposite parties).
2. The brief facts of the present complaint are that the complainant had purchased a Xolo QGIOS Plus mobile set for an amount of Rs. 11,500/- from the opposite party No. 1 vide invoice dated 5.2.2015 having IMEI No. 911372250519346 and 911372250519353 and at the time of purchase of mobile set the opposite party No. 1 assured the complainant that there is guarantee of one year and if any problem occur in the above mobile set then opposite party No. 1 will replace the same with new one and opposite party No. 2 is the authorized service centre of the opposite party No. 3, so the complainant is consumer of the opposite parties. It is further averred that in the month of May 2015 the mobile set started giving problem i.e. time and again automatically restarted. The complainant was surprised to see that his new mobile set was not working properly. Then the complainant in the middle of May 2015 alongwith his friend approached the opposite party No. 1 and requested him to rectify the defect who assured the complainant that he will get rectify the defect in the mobile set and told the complainant that he can took his mobile in the evening. He further submitted that in the evening the opposite party No. 1 hand over the mobile to the complainant after repairing the same but after 15/20 days the mobile again started giving same problem. The complainant again approached the opposite party No. 1 and requested him to change the mobile set with new one but opposite party No. 1 assured him that this is a minor problem and service centre i.e opposite party No. 1 rectify the said defect. Thereafter on 5.6.2015 at 10.30 AM the complainant alongwith his friend and opposite party No. 1 approached the opposite party No. 2 and told about the said problem. The opposite party No. 2 retained the said mobile set and told the complainant to come in the evening to collect the mobile as they will rectify the said defect. On the same day at about 4.30 PM the complainant alongwith his friend and opposite party No. 1 again approached the opposite party No. 2 for receiving the mobile set then complainant shocked to see that the touch of his mobile set has been broken. On asking the opposite party No. 2 stated that they have received the mobile set in broken condition and they have not broken the touch. The opposite party No. 2 flatly refused to accept his mistake and also refused to issue the job sheet. Thereafter the complainant also telephonically approached the opposite party No. 3 and told about this incident but opposite party No. 3 did not hear the complainant. This act of the opposite parties falls under the deficiency in service and unfair trade practice. Hence the complainant has filed the present complaint seeking following directions to the opposite parties.-
1) To change the defective mobile set with new one or refund the cost of the mobile set alongwith up to date interest.
2) To pay Rs. 30,000/- on account of compensation for mental agony and harassment and Rs. 10,000/- as litigation expenses.
3. Upon notice, the opposite party No. 1 initially personally appeared and filed his written statement but later on the opposite party No. 1 failed to appear in this Forum and was proceeded exparte by this Forum vide order dated 18.8.2015. However, in his written statement the opposite party No. 1 admitted the claim of the complainant. He admitted in his written version that the complainant purchased the mobile set from him. He also admitted that in May 2015 the complainant alongwith his friend approached the answering opposite party with a defect in his mobile which was removed by the answering opposite party on the same day. It is also admitted that thereafter complainant again approached him on 5.6.2015. It is also admitted that the complainant alongwith answering opposite party approached the opposite party No. 2 to remove the defect in the mobile set of the complainant and opposite party No. 2 retained the same for rectification of defect. On the same day in the evening the answering opposite party again visited the opposite party No. 2 alongwith complainant and his friend to collect the mobile set but they shocked to see that the touch of the mobile was in broken condition. On asking the opposite party No. 2 told that they received the mobile set in broken condition and they have not broken the touch of mobile set and flatly refused to accept his mistake and to issue the job sheet in the presence of the answering opposite party. The opposite party No. 1 further submitted that he only sold the mobile set and it is the responsibility of the service centre to rectify the defect, so there is no deficiency on the part of the answering opposite party. The opposite party No. 1 admitted the allegations of the complainant and finally prayed for the dismissal of the complaint only qua the answering opposite party.
4. The opposite parties No. 2 and 3 filed a joint written statement taking preliminary objections on the ground that the present complaint is not maintainable and complainant has not come to the Forum with clean hands. Further, the complainant has got no locus standi to file the present complaint as present complaint has been filed without any technical report. Further, the complainant has no cause of action to file the present complaint as there is no defect in the mobile set what to talk about manufacturing defect. The answering opposite parties manufactured thousands of mobile set in a single time and if any manufacturing defects occurs then it will in an entire lot but there is not a single complaint from any other customer who are using the same model mobile set manufactured by the answering opposite parties. They further submitted in the preliminary objections that the complainant approached the service centre for the first time on 5.6.2015 with the broken mobile unit. Engineer of the company checked the unit and found that touch of the unit was physically damaged so the unit is barred by the warranty and estimate for repair was given to the complainant for its repair but complainant refused to get the mobile set repair with cost as, as per terms and conditions of the answering opposite parties in case of physical damage/mishandling the complainant has to pay the cost of repair. The opposite party is still ready to repair the unit as per company policy. They further submitted that the present complaint is filed without any expert opinion that the mobile set is not working properly, so there is no manufacturing defect in the mobile set. On merits, the opposite parties No. 2 and 3 denied all the allegations of the complainant and reiterate the preliminary objections. They further submitted that the mobile set of the complainant does not fall under the terms and conditions of warranty and complainant refused to pay the cost of the repair, so there is no deficiency of service on the part of the opposite parties. The opposite parties have denied the other pleas of the complainant and finally prayed for the dismissal of the complaint with heavy costs.
5. In order to prove his case, the complainant has tendered affidavit of Binder Singh Ex.C-1, his own affidavit Ex.C-2, copy of bill dated 5.2.2015 Ex.C-3 and closed the evidence.
6. To rebut the case of the complainant the opposite parties have tendered in evidence affidavit of Amardeep Singh C/o Lava International Private Limited Ex.OP-2.3/1 and closed the evidence.
7. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
8. It is admitted fact that the complainant purchased the mobile set in question from the opposite party No. 1 vide invoice dated 5.2.2015 copy of which is Ex.C-3 by paying an amount of Rs. 11,500/-. It is further admitted by the opposite party No. 1 that firstly the mobile set of the complainant developed some defect in the month of May 2015 which was removed by the opposite party No. 1 himself on the same day when the complainant approached him. It is also admitted fact that on 5.6.2015 the mobile set of the complainant again developed same defect and he again approached the opposite party No. 1. It is further admitted by all the opposite parties that on the same day i.e. 5.6.2015 the complainant approached the service centre i.e. opposite party No. 2 and hand over the mobile set to opposite party No. 2.
9. The complainant further submitted in his complaint that on 5.6.2015 the opposite party No. 2 retained the mobile set of the complainant and told him to collect the same in the evening. But when in the evening he alongwith his friend and opposite party No. 1 approached the opposite party No. 2 then they surprised to see that the touch of the mobile set was in broken condition whereas when the mobile set was given to the opposite party No. 2 the same was in good condition. The allegation of the complainant is that it is the service centre of opposite parties, who has broken the touch of the mobile set. To prove his case the complainant tendered in evidence his own affidavit Ex.C-2 and affidavit of Binder Singh Ex.C-1 and reiterated the stand taken by him in his complaint.
10. On the other hand the case of the opposite parties No. 2 and 3 is that the complainant approached the opposite party No. 2 on 5.6.2015 with his mobile set in broken condition. As the mobile set was physically damaged, so the mobile set is barred by the warranty as per the terms and conditions of the company. The estimate was given to the complainant for the repair of the same but the complainant himself refused to get repaired his mobile set with costs. To support their stand the opposite parties tendered in evidence only affidavit of one Amardeep Singh C/o Lava International Pvt. Ltd. Ex.OP-2.3/1.
11. Now from the pleadings of the parties the main question arises that when the complainant hand over the mobile set to opposite party No. 2 on 5.6.2015 at that time the same was in good condition or in broken condition. But to prove this point nothing has been brought by the opposite parties on the file. The complainant to prove his case tendered his affidavit and another affidavit of his friend Ex.C-2 and Ex.C-1 and copy of bill Ex.C-3 which proved that he purchased the mobile set from the opposite party No. 1. The opposite parties No. 2 and 3 have not tendered any document to prove that at the time of receiving the mobile set from the complainant the same was in broken condition. They have not issued any job sheet to the complainant in this regard. They have further not produced any record to prove that they have received the mobile set in damaged condition. Even, they have failed to produce the affidavit of the concerned official of the opposite party No. 2, who has received the mobile set from the complainant in broken condition. They further failed to produce any copy of estimate which was given to the complainant to repair his mobile set, as alleged by them in their written version.
12. In view of the above discussion, this Forum is of the considered opinion that the opposite parties No. 2 and 3 are deficient in providing services to the complainant. Accordingly, present complaint is partly allowed and opposite parties No. 2 and 3 are directed to repair the mobile set in question. Complainant is directed to hand over the mobile set to the opposite party No. 2 within 10 days from the date of the receipt of this order. The opposite parties No. 2 and 3 are directed to hand over the mobile set with job card to the complainant after mentioning the complete details of repairs within 30 days from the date of the receipt of the mobile set from the complainant. Further, the opposite parties No. 2 and 3 are also directed to pay Rs. 1,100/- to the complainant as litigation expenses. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
4th Day of September 2015
(Karnail Singh)
Member
I do agree
(S.K. Goel)
President
(Vandna Sidhu)
Member
