Delhi

North East

CC/472/2015

Smt. Shafali - Complainant(s)

Versus

M/s Micromax Ltd. - Opp.Party(s)

20 Jan 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  472/15

 

In the matter of:

 

	Smt. Shafali W/o Hemant Deepak R/o 1/10677 C, 2nd Floor Gali No. 4, Subhash Park Naveen Shahdara, Delhi-110032.	Complainant
	Versus
1.       2.       3.	M/s Micromax Ltd 288-A Udyog Vihar Phase-IV Gurgaon -122015, Haryana   M/s VI Communication Shop No. 83A, 1st Floor, Radhey Puri Extn. Jagatpuri, Delhi-110051.   J.M.D. Enterprises 1/2417, Mandoli Road, Ram Nagar, Shahdara, Delhi-110032.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

28.11.2015 20.01.2020 20.01.2020

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

 Order passed by Ms. Sonica Mehrotra, Member

 

 

 

ORDER

1. Facts germane for disposal of the present complaint are that the complainant had purchased a Micromax Canvas EG111 mobile manufactured by OP2 from J.M.D. Enterprises, Shahdara Delhi on 18.06.2014 for a sum of Rs. 15,100/- and as per the terms and condition of the guarantee card issued by OP1 therewith, the said mobile came with one year warranty and free service. However, within one month of its usage, the screen of the subject mobile broke and the complainant had to submit it at OP1’s service centre at Laxmi Nagar, Delhi for screen replacement and the service centre handed over the mobile back to the complainant after 20 days but the subject mobile started malfunctioning for which it had to be submitted again at the said service centre which was then returned in November 2014. Lastly when the subject mobile started giving problems yet again of power not getting switched on in April 2015, the same was deposited by the complainant with OP2 Authorized Service Centre (ASC) of OP1 on 13.08.2015 after which despite several written and telephonic communication by the complainant in October, duly acknowledged by OP1, the subject mobile was never repaired or returned to the complainant by OPs. Therefore, feeling aggrieved at the deficiency of service on the part of OPs which resulted in huge loss suffered by the complainant in her cable TV business for which the mobile was used, the complainant was constrained to file the present complaint before this Forum against OPs praying for issuance of directions to refund the cost of mobile i.e. Rs. 15,100/- alongwith Rs. 20,000/- loss of business.

Complainant has attached copy of duplicate bill No. 13215 dated 19.06.2014, copy of complaint letter dated 04.10.2015 by the complainant’s husband to OP2 demanding immediate replacement of the defective mobile which was not returned by OP1 since August 2015 and reply e-mail dated 05.10.2015 by OP2 acknowledging complainant’s grievance declining any refund or replacement in view of replacement possible only within 7 days from date of purchase and after service centre finds any manufacturing defects and copy of jobsheet No. N031598-0815-18555073 dated 13.08.2015 issued by OP1 for deposit of mobile.

2. Notice was issued to OPs on 16.12.2015. Both OPs were served on 06.01.2016, however none appeared on their behalf and therefore were proceeded against ex-parte vide order dated 08.02.2016.
3. Complainant filed ex-parte evidence by way of affidavit on 05.04.2016 exhibiting documents relied upon as Ex CW-1/A to               CW-1/D.

On hearing held on 29.09.2016, OP2 through counsel appeared and offered settlement in the matter for which consideration time was given to both the parties. OP2 filed written arguments vide which it resisted the complaint arguing that the complainant has failed to produce the terms of warranty on the basis on which she is claiming right to after sale service from OP1 and OP2 and as per her own case, the warranty had expired on 17.06.2015 after expire of which only did she deposit the mobile with OP1 on 13.08.2015. lastly OP2 urged that the copy of the bill filed by complainant is a duplicate one and the price mentioned therein is inflated as the market rate of the subject mobile was Rs. 9,500/- and that the present complaint has been filed by the complainant to drag OP2 in the said litigation without any deficiency of service on its part and instead of complainant collecting the repaired mobile from OP1, is asking for refund or replacement. OP2 prayed for dismissal of the complaint taking the plea that the mobile has already being lost or stolen from complainant’s possession.

4. On hearing held on 17.05.2017, the complainant filed amended memo of parties with request to implead the shopkeeper i.e. J.M.D. Enterprises as a party from where the subject mobile was purchased. The said application was allowed as it did not change the nature of complaint. Thereafter complainant filed amended complaint impleading J.M.D. Communication and on the amended complaint, notice was issued to OP3 on 22.05.2017. However none appeared on behalf of OP3 despite service effected on 09.01.2018 on its fresh address and was therefore proceeded against ex-parte vide order dated 16.04.2018. Prior to this, OP2 filed written statement on 07.07.2017 which shall not be considered in view of it having already been proceeded against ex-parte vide order dated 08.02.2016 and accordingly the rejoinder thereto filed by complainant also is not of any relevance.

In hearing held on 16.04.2018, both parties had difference of opinion on the price of the mobile in as much as the complainant argued that as against the printed price / MRP of Rs. 19,999/- on the box of the mobile brought before this Forum, OP3 had sold it at a discounted rate of Rs. 15,100/- whereas OP2 submitted that the market price of the said mobile had never exceeded Rs. 10,000/-. In support of their respective rival contentions, complainant filed printouts from the internet website of Gadgets House showing the launch price of the subject mobile in February – March 2014 asRs. 15,790/- Rs. 16,000/- with Average Current Market Price as Rs. 15,990/- at the time of its launch date 13.02.2014 which price is also quoted on online marketing portal Flipkart. In contradiction to the same, counsel for OP2 placed on record copies of documents filed in some other unconnected case no. 421/15 Charanjeet Vs Micromax in which the copy of invoice no. 02972693 dated 16.10.2014 for the same subject mobile was rated at Rs. 9,999/-. Due to the dead lock between the parties pertaining to pricing of the mobile, no settlement could be arrived at and therefore the matter was posted for oral arguments.

5. We have heard the arguments addressed by both the parties and have carefully perused the pleadings essayed by both sides in terms of their respective grievance / defence. During the course of oral arguments complainant submitted that the duplicate bill was issued by OP3 since the complainant had misplaced the original bill but the fact that the subject mobile was admitted for deposit by OP1, OP2’s ASC speaks volumes of its authenticity. Further complainant urged that there was a marked contradiction between OP2’s pleadings in written arguments that on one hand it submitted that the complainant failed to collect the repaired mobile from OP1 and on the other hand it alleged that the complainant has already lost the subject mobile or the same was stolen while in her possession.

Undisputedly, the subject mobile has been lying with OP1 since 13.08.2015. OP2 has not been able to controvert the contention raised by the complainant that the subject mobile malfunctioned from early period of its purchase and was giving recurring problems from July 2014 till its last deposit with OP1 in August 2015 because of which it had to be repeatedly submitted with service centers for repairs and when it was last deposited on 13.08.2015, the repair warranty was valid as shown in the said jobsheet as repair warranty: Yes.

OP2 could not explain or justify repeated submission of the subject mobile and therefore this issue is decided in favour of the complainant. In so far as the pricing of the subject mobile is concerned, the same was introduced in Indian Market in February march 2014 as introductory price of Rs. 16,000/- and the complainant purchased it in June 2014 for Rs. 15,100/-,the concession having been given by OP3 possibly because it was already four months since the mobile was introduced. On the contrary the OP3 relied upon invoice dated October 2014 of the subject mobile having being sold at Rs. 10,000/- (four months after purchase by complainant) and price of the subject mobile rated as Rs. 6,800/- in July 2018 i.e. after four years of purchase by the complainant for Rs. 15,000/- which fully explains the reduced cost in both cases. We are therefore not convinced with the line of argument taken by OP3 in both aspects and this issue was also decided in favour of the complainant pertaining to the pricing of the subject mobile.

6. On thoughtful consideration to the arguments and documents placed on record, we observed that when a person purchases a new mobile handset he or she expects its efficient and defects free working and not to take the same repeatedly to service centers for rectification of the defects which actually deprive the buyer from using the mobile phone to his full satisfaction as has happened in the present case too. The Hon'ble National Commission in recent judgment of Samsung India Electronics Pvt. Ltd. & Anr Vs Farooq Khan & Anr IV (2019) CPJ 608 (NC) passed on 02.07.2019  held that if the complainant had filed any complaint with OPs for non functioning of mobile handset, OPs were duty bound to rectify the defect as the mobile was under warranty and failing to discharge its duty was deficiency of service. In view of the aforesaid observations which are squarely applicable to the present case as well as in which the complainant could not use the subject handset to his full satisfaction and enjoyment and had to submit his phone repeatedly for repair and was never returned the handset by OP1 nor the same was replaced or cost refunded thereof by OP2, we hold both OPs guilty of deficiency of service in having sold a defective mobile and failed to repair / replace the same despite it being under warranty and recurring defects arising therein. No observation / adverse directions is made against OP3, the seller since the subject mobile manufactured by OP2 was never returned / repaired by OP1 nor was replaced or price refunded by OP2 against which the complainant had primarily raised grievance. The OP1 and OP2 have failed to either clarify the reason for defects or rectify them, thereby depriving the complainant of its optimum use. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission, therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half.
7. Therefore, relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of mobile phone and direct OP1 and OP2 jointly and severally to refund the cost of the mobile handset after depreciation to the tune of Rs. 10,000/-. Let the order be complied by OP1 & OP2 within 30 days from the date of receipt of copy of this order.
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.  File be consigned to record room.
10.   Announced on  20.01.2020.

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member