DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  PATIALA.

                                      Consumer Complaint  No. 350 of  11/09/2017

                                                Decided on:          29/11/2018

Mohit Vashisht son of Sh. Hari Bhushan, R/o B-48/408, Katra Sahib Singh, Patiala.

                                                                             … Complainant

                                     Versus         

1.       M/s Micromax Informatics Ltd. Plot No.21/14, Block A, Naraina Industrial Area Phase-II, New Delhi-110028 through its MD/ GM / CEO.

2.       M/s. Mobitech, B-1, Ranjit Plaza, Adh. Hotel Jiwan Plaza, Bhupindra Road, Patiala-147001.

3.       Reliance Digital Store, Shop No.240-B, Near Singh Sabha Gurudwara, Dharampura Bazaar, Patiala-147001.

                                                                         ….Opposite party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt. Neelam Gupta, Member

                                      Sh. Kanwaljeet Singh, Member                                     

ARGUED BY:

                             Sh. Labh Singh Sandhu Adv. Counsel for the complainant.

                             Sh. Vipan Sharma  Adv. Counsel  for  OP No.1.

OPs No.2 & 3 ex-parte. 

 ORDER

                                    KANWALJEET  SINGH,  MEMBER

1.                 Brief facts of the case are that the complainant purchased one Micromax Q338 mobile phone bearing IMEI No.911457701692816 from Op No.3 on 06/03/2016. The warranty of the mobile phone is for 12 months. From the very beginning  the mobile phone is defective and after five days of purchase, it started  hanging and performance of the same was very slow and even halt while use. Complainant approached OP No.3 of this problem and OP No.3 advised the complainant to approach Op No.2. OP No.2  i.e. Service centre of Micromax advised the complainant to use external memory and keep internal memory of the phone less burdened.   Complainant used the said mobile  phone according to the advice  of OP No.2 but it started heating up, hanged down and started switch of automatically. In the month of April 2016, complainant  approached OP No.2 who  suggested the software  update in the set but this defect could not be rectified by OP No.2. Complainant approached OP No.2 in the third week of  April, 2016 and OP kept the phone with them and assured the complainant that they will cure the said defect in the said mobile phone. Meanwhile complainant has also conversation with  Micromax Customer Care Centre 1800 500 8286 who assured the complainant for the satisfactory service and asked the complainant to trust the local customer service Centre. In the month of July 2016 battery of  the phone  is not working properly and complainant approached the OP and complainant  comes to receive the mobile phone from OP No.2 and found that  OP No.2  has  changed the whole set of the complainant. Complainant raised the issue on the spot that phone was faulty tampered as it has many scratches and its corners were badly brittle  showing signs of poor handling and OP No.2 told to the complainant that this phone comes to the company in this condition and complainant again contacted with the  customer  care i.e. OP No.1 who told that phone was never sent to the company. OP No.2 assured the complainant that  within some days  they will remove all the defects and OP No.2 also issued the job card to the complainant and they mentioned on the job card that the warranty  void of the mobile set of the   complainant. Then  complainant has also  sent emails to OP No.1. Ops No.1 to 3 failed to discharge their duty towards the complainant and Ops failed to do replace the mobile phone as guaranteed during the warranty period. Complainant prayed that  present complaint may kindly be accepted with cost and litigation expenses and OP may kindly be directed to replace the mobile phone or  return the amount of Rs.16,800/- along with interest @ 24 %  and Rs.10,000/- as compensation.

2.                Upon notice OPs appeared and OP No.1 filed written version and taken preliminary objections that  complaint is not maintainable. Complaint is bad for misjoinder of the necessary party. Complainant has not mentioned the date as to when he approached OP No.2. There has been no conversation with  Micromax Customer Care centre as alleged by the complainant. It is pertinent  to mention here   that as per annexure C-3 the mobile set  of the complainant was found to be liquid logged and as per terms and conditions of the warranty supplied to the complainant . The liquid or water damaged products do not fall within the warranty as their warranty automatically becomes or turns void.  The alleged emails attached with the complaint are self created documents and prayed that complaint of the complainant is false, frivolous and untenable in law besides being devoid of any merit and the relief sought by the complainant should not be granted against the answering OP and the same may kindly be dismissed with special compensatory costs.

3.                Counsel for  OP No.2 has suffered the statement he has no instructions from OP No.2 and therefore OP No.2 is proceeded against ex-parte vide order dt.10/1/2018. OP No.3 also proceeded against ex-parte vide separate order dt.13/12/2017.

4.                Ld. Counsel for the Complainant tendered in evidence Ex.CA sworn affidavit of the complainant along with documents Ex.C-1 to Ex.C-4 and closed the evidence. Evidence of the Opposite party No.1 is closed by order.

5.                We have heard the complainant and ld. counsel for the opposite party and have also gone through the record of the case, carefully.

6.                During arguments the contentions of the parties are similar to their respective pleadings so no need to reiterate the same. It reveals from the document Ex.C-1 that the mobile set in question was purchased by complainant for Rs.5799/- on 6/3/2016 from OP No.3. Ex.C-2 & Ex.C-3 are the job sheets in which it is clear cut mentioned that the problem in mobile set regarding battery not charging/ low battery capacity/ power does not switch on etc. In Ex.C-3 in remarks column it is mentioned “LIQUID LOGGED WARRANTY VOID”. Ex.C-4 are same emails corresponding between the parties. In which complainant mentioned that his phone was fully tampered and Ops informed that replacement is only available within 7 days from the date of purchase after the service centre finds any manufacturing defect.

7.                Now come to the Major controversy is whether there is any manufacturing  defect in the mobile set? Here it may be stated that the onus to prove  that the mobile set in question is having any manufacturing defect is on the complainant. Complainant neither examine any expert evidence nor rely upon any evidence to prove that mobile set is having manufacturing defect; problem in the mobile set is in existence. Sundeep Polymers Pvt. Ltd. & Others Vs. Mercedez Benz India Pvt. Ltd III (2009) CPJ 389 (NC), It was held that the onus of prove inherent  manufacturing defect is on the  complainant.

8.                Resultantly, we partly allow the complaint and direct the Ops to repair the defective part of the mobile set in question, if any, free of cost and also to pay compensation alongwith litigation costs of Rs.2000/- to the complainant. Entire compliance of the order be made by the Ops within a period of 30 days from the date of receipt of the certified copies of this order. The certified copies of this order be sent to the parties free of cost under the rules. Thereafter, file be indexed and consigned to the record room.

Announced                                                                                        Dated:  29/11/2018 

Kanwaljeet Singh                           Neelam Gupta                                                                         Member                               Member