Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 525.
Instituted on : 19.11.2015.
Decided on : 28.04.2016.
Subhash s/o Sh. Jeet Singh R/o village-Kansala, Distt. Rohtak.
………..Complainant.
Vs.
- M/s Krishna Mobile Ghar, Chhotu Ram Chowk, Civil Road, Rohtak through its Proprietor.
- Swastik Systems, Shop No.7 Bapu Asha Ram Complex, Chhotu Ram Chowk, Rohtak Service Centre 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. Raj Kumar Dahiya, Advocate for the complainant.
Sh. Raj Pal Proprietor for opposite party No.2.
Opposite party no.1 and 3 already exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a mobile set Model No.HTC Desire 820 vide bill no.8666 dated 17.12.2014 for an amount of Rs.24500/-. It is averred that opposite party no.2 is the authorized service centre and opposite party no.3 is the manufacturer of HTC mobile phone. It is averred that in the month of June 2015 the above said mobile phone started creating problem and the said mobile phone’s battery overheat and phone started hanging and battery did not gave proper backup. It is averred that complainant approached the opposite party on 30.06.2015 but after repairing, it again gave same problem and after that complainant approached the opposite party many times but the problem could not be resolved. It is averred that the complainant deposited the mobile phone to opposite party on 03.11.2015 and the same is still deposited with the opposite parties. It is averred that the defects in the mobile set appeared during the warranty period but the same could not be removed despite repeated repairs by the service center. It is averred that the act of opposite parties is illegal and amounts to deficiency ion service. As such it is prayed that the opposite parties may kindly be directed to refund the cost of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. On notice opposite party no.2 appeared and filed its reply submitting therein that the answering opposite party is only a service provider and warranty is given by the company. It is averred that on 25.03.2015 complainant contacted the opposite party and complained about the set gets hang. On checking it was found that the complainant is using “Manually cut sim” instead of original proper sim provided by the ‘Network service provider’. The complainant was requested to use proper SIM to avoid this problem. Again the complainant contacted the opposite party but the proper sim was not installed and as per his request latest software version was updated and he was satisfied. It is averred that complainant could not show the heat problem and again on the request of complainant software was updated. It is averred that on 03.11.2015 the set was sent to the company for necessary repairs and after repairs the complainant collected the same on 14 November 2015. It is averred that the answering opposite party has served the complainant every time as per his will and wish promptly as stated above and there is no deficiency in service on the part of answering opposite party and dismissal of complaint has been sought. However opposite party no.1 & 3 did not appear despite service and were proceeded against exparte vide order dated 23.12.2015 of this Forum.
3. Both the parties led evidence in support of their case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and has closed his evidence. On the other hand, opposite party no.2 tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R6 and has closed his evidence.
5. We have heard ld. Counsel for the parties 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 17.12.2014 for a sum of Rs.24500/- as is proved from the bill Ex.C1 and as per job sheet Ex.C2 dated 03.11.2015 the problem in the handset were regarding Network drops in both slots, overheating issue, week battery backup, hanging issue and as per job sheet dated 30.06.15 Ex.C3, 09.10.15 Ex.C4 and as per job sheet dated 17.09.2015 Ex.C5 there were also the same problems in the set. It is observed that the defects in the alleged mobile set appeared within warranty period and the same could not be rectified by the opposite party no.2 i.e. service centre despite repeated repairs.
7. After going through the file and hearing the parties it is observed that as per the job sheets Ex.C2 to Ex.C5, the problems in the handset appeared repeatedly during warranty period but the same could not be repaired during warranty period. On the other hand contention of opposite party no.2 is that there was no problem in the handset and that opposite party no.2 is not liable for any manufacturing defect but to prove its contention, no expert report has been placed on record by the opposite parties. It is also on record that the opposite party no.1 & 3 did not appear before this Forum and has failed to defend the allegations leveled by the complainant and as such it is presumed that opposite party no.1 & 3 have 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 it 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.24500/-(Rupees twenty four thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 19.11.2015 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision. The set in question is already with the opposite party no.2. 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:
28.04.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
…………………………….
Ved Pal, Member.
