DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Consumer Complaint No.:  CC/139/2018

Date of Institution :    02.11.2018

Date of Decision :    23.07.2019

Kapil Garg aged 39 years son of Sh. Satya Paul Garg resident of B2-B/II/881, Near Geeta Bhawan, Barnala-148101 (Punjab). 

...Complainant.

    Versus

1. M/s Raju Telecom, Near Bus Stand, Dhanaula, District Barnala Through Authorized Signatory.

2. M/s Reliance Retail Ltd., Ground Floor, Opposite Grace Express, Nanaksar Road, Barnala District Barnala (Service Centre), Through Authorized Signatory.

3. Reliance Retail Ltd., Registered Office, 3rd Floor, Court House, Lokmanya Tilak Marg, Dhobi Talao, Mumbai-400002. 

...Opposite Parties 

Complaint Under Section 12 of Consumer Protection Act, 1986.

Present: Sh. VS Duggal counsel for the complainant.

Opposite party No. 1 exparte.

Sh. NK Garg counsel for the opposite parties No. 2 and 3. 

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY KULJIT SINGH PRESIDENT):

  The complainant namely Kapil Garg has filed the present complaint under Consumer Protection Act (As amended up to date) against Raju Telecom, Barnala and others.  (hereinafter referred as opposite parties).  

2. The brief facts of the present complaint as stated by the complainant are that the complainant had purchased one mobile set LYF Smart phone vide invoice No. 577 dated 5.11.2016 model L55015, white colour having EMI No. 911505000050589 and 911505001050588 from the opposite party No. 1 manufactured by the opposite party No. 3 and opposite party No. 2 is the authorized service centre of the opposite party No. 3. At the time of purchase the opposite party No. 1 assured the complainant for guarantee of two years and in case of problem device would be replaced with new one.   

3. It is further alleged that on the same day of purchase said mobile developed problem of charging and complainant contacted the opposite party No. 1 and told him about the problem who suggested the complainant to approach opposite party No. 2. On this he approached opposite party No. 2 who received the mobile set and issued a job sheet dated 5.11.2016 and after 2/3 days the complainant received his mobile set. It is submitted here that the opposite party No. 2 changed the motherboard of the mobile set but did not give new IMEI number. But thereafter in the month of July 2017 the mobile again started giving problem and complainant contacted opposite party No. 2 who issued job sheet dated 23.7.2017 in the name of Krishan Kumar who is relative of complainant. After few days, the mobile set was returned after repair. But after two days i.e. on 25.7.2017 the mobile again got defective and this time also opposite party No. 2 issued job sheet in the name of Krishan Kumar and returned the mobile set after repair. Again after two months in October 2017 the mobile again started giving problems and opposite party No. 2 again issued job sheet dated 10.10.2017 and returned the mobile after repair and motherboard was again changed. But again in November 2017 it was started giving problem and opposite party issued job sheet dated 17.11.2017 but this time the opposite party No. 2 told the complainant that mobile set was not repairable and refused to return the mobile set. The complainant contacted opposite parties No. 1 and 3 and told about this problem but they also failed to sort out the problem of the complainant. The mobile is under guarantee period so opposite parties are bound to replace the mobile set with new one or refund the price of mobile set. This act of the opposite parties is mal practice and deficiency in service on the part of the opposite parties. Hence the present complaint is filed seeking the following reliefs.-

1) Opposite parties be directed to replace the mobile set with a new one or refund the price of the mobile set i.e. Rs. 16,6,50/- alongwith interest at the rate of 12% per annum.  

2) Further, opposite parties be directed to pay Rs. 5,000/- as compensation for mental agony and harassment.

3) Further, opposite parties be directed to pay Rs. 5,000/- on account of litigation expenses. 

4) Any other relief which this Forum deems fit. 

4. The opposite party No. 1 not appeared before this Forum despite service, so the opposite party No. 1 was proceeded against exparte vide order dated 4.1.2019. 

5. Upon the service of notice of this complaint, opposite parties No. 2 and 3 appeared through their counsel and filed written reply taking preliminary objections that the complainant has placed on record forged invoice of product i.e. invoice No. 577 dated 5.11.2016 issued by opposite party No. 1 for Rs. 16,650/- as this product was in the range of Rs. 11,000/- to 12,000/-. Further, on verification it has been found that product of the complainant was activated on 30.7.2016 as per records so present complaint is false. Further, in the previous complaint the signatures of the complainant were not matched with the signatures on the invoice so also this invoice is not valid. Further, the complainant has concealed the material facts from this Forum and not approached this Forum with clean hands.

6. On merits, it is submitted that complainant has not purchased this product on 5.11.2016 as its activation date was 30.7.2016. The IMEI numbers of the mobile set are admitted. It is submitted that product is strictly governed by the terms and conditions of warranty card extended on the product. It is further submitted that on 5.11.2016 some Krishan Kumar visited the opposite party No. 2 with the problem of charging due to which the opposite party replaced the PCBA of the product free of costs and returned the same on the same day to the satisfaction of said Krishan Kumar who put his signatures on the job sheet dated 5.11.2016 and new IMEI number was updated in the records. Thereafter, complainant visited the opposite party No. 2 on 23.7.2017 with the problem of Network Signal. On this service Engineer of the opposite parties updated the software of the product and returned the same on the same day with the complete satisfaction of the complainant. After that on 25.7.2017 the complainant again visited opposite party No. 2 on 25.7.2017 with the problem of receiver troubling which was replaced free of cost. Thereafter, on 10.10.2017 the complainant visited opposite party No. 2 with the problem of Network  due to which the PCBA of the product was replaced free of cost and IMEI number was updated in the records. After that on 17.11.2017 the complainant visited the opposite party No. 2 with Network Problem/Auto Network Drop and after inspection it was found that there was no defect in the product and product was also out of warranty. Further, complainant was informed that the problem is due to Network fluctuation of BSNL but he refused to accept the same and left service center of opposite party No. 2 without taking back his mobile. A job sheet dated 17.11.2017 was also generated which the complainant refused to sign. The opposite party No. 2 sent letters to the complainant on 19.12.2017, 4.1.2018, 24.1.2018 and 30.4.2018 to take back his mobile but complainant not to respond the same. So, there is no deficiency in service on the part of the answering opposite parties. Lastly, the opposite parties No. 2 and 3 prayed for the dismissal of the present complaint with costs. 

7. The complainant in order to support his complaint has tendered into evidence his own affidavit as Ex.C-1, copy of order dated 23.3.2018 as Ex.C-2, bill as Ex.C-3, copies of job sheet as Ex.C-4 to Ex.C-7, copy of sticker of motherboard as Ex.C-8, copy of job sheet as Ex.C-9. 

8. On the other hand the opposite parties No. 2 and 3 to support their version have tendered in evidence copy of screen shot of activation date of the product as Ex.OP-2.3/1, copy of invoice dated 5.11.2016 as Ex.OP-2.3/2, copy of limited warranty terms and conditions as Ex.OP-2.3/3, copy of CIS dated 5.11.2016 as Ex.OP-2.3/4, copy of job sheet dated 5.11.2016 as Ex.OP-2.3/5, copy of CIS dated 23.7.2017 as Ex.OP-2.3/6, copy of job sheet dated 23.7.2017 as Ex.OP-2.3/7, copy of CIS dated 25.7.2017 as Ex.OP-2.3/8, copy of job sheet dated 25.7.2017 as Ex.OP-2.3/9, copy of CIS dated 10.10.2017 as Ex.OP-2.3/10, copy of job sheet dated 10.10.2017 as Ex.OP-2.3/11, copy of CIS dated 17.11.2017 as Ex.OP-2.3/12, copy of job sheet dated 17.11.2017 as Ex.OP-2.3/13, copy of letters dated 19.12.2018 with postal receipts as Ex.OP-2.3/14, affidavit of Vikram Sharma as Ex.OP-2.3/15 and closed the evidence. 

9. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments filed by the opposite parties No. 2 and 3 have also gone through. 

10. It is admitted fact between the parties that the complainant  purchased the mobile set from the opposite party No. 1 manufactured by opposite parties No. 2 and 3, however the date of purchase is in question. It is also admitted by the opposite parties that mobile set of the complainant got defective on 5.11.2016 and he visited the opposite party No. 2 for its repair on the same day which was repaired vide job sheet Ex.OP-2.3/5. It is also admitted by the opposite parties in their version that on 5.11.2016, 23.7.2017, 25.7.2017, 10.10.2017 and 17.11.2017 the complainant visited the opposite party No. 2 with the defect in the mobile in question for repair. It is also admitted by the opposite parties that the mobile of the complainant is in their possession from 17.11.2017. 

11. The main objection of the opposite parties in the present complaint is that invoice of the purchase of mobile by the complainant Ex.C-3 is forged document as the date of this invoice is 5.11.2016 whereas the activation date of the mobile is 30.7.2016 as mentioned on job sheet dated 5.11.2016 Ex.C-4. 

12. Firstly, we deal with this objection of the opposite parties. To prove that the invoice is genuine document the complainant placed on record original invoice Ex.C-3 which is in favour of the complainant and IMEI numbers of the mobile are also mentioned on this bill. Further, only on Ex.C-4 the activation date is mentioned as 30.7.2016 but all other job sheets Ex.C-5 to Ex.C-8 the activation date is mentioned as 5.11.2016 whereas on job sheet dated 17.11.2017 Ex.C-9 no activation date is mentioned. Even, these documents also tendered by the opposite parties in their evidence, so in view of these documents this objection of the opposite parties has no force and the bill is genuine one. 

13. Now the main question before us whether the complainant is entitled to the New Mobile Set or Refund of the price of Mobile Set or not ?

14. To prove that the mobile set got defective many times after its purchase on 5.11.2016, the complainant mainly relied upon his affidavit Ex.C-1 in which he has reiterated all his submissions as mentioned in the complaint. He further relied upon job sheets Ex.C-4 to Ex.C-8 and Ex.C-9 and from these job sheets it is proved on the record that the mobile set of the complainant was got defective many times due to different defects and for this reason he has to visit the office of opposite party No. 2 many a times to rectify these defects. Even, the opposite parties also filed these job sheets in their evidence as Ex.OP-2.3/5, Ex.OP-2.3/7, Ex.OP-2.3/9, Ex.OP-2.3/11 and Ex.OP-2.3/13 so the opposite parties also admitted that the mobile of the complainant got defective many times after its purchase. It is also admitted by the opposite parties in their version that the mobile set is in their custody from 17.11.2017.  

15. We have also perused the evidence of the complainant who has not tendered affidavit of any expert or report of any expert in his evidence which is necessary to prove a manufacturing defect in the product, so the complainant is failed to prove manufacturing defect in the mobile in question and he is not entitled for new mobile set or refund of price of mobile set. However, as the mobile set was not working properly from the date of it purchase so the complainant is entitled for the repair of mobile set and replacement of defective parts.

16. In case Sushila Automobiles Versus Dr. Birendra Narain and Ors. 3 (2010) CPJ-130 (NC) wherein it was observed as.-

“At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential in put. The Hon'ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in his backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car has been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party- manufacturing company, it will not by itself amount manufacturing defect.”

This citation is fully applicable to the facts of the present case as in the present case also the complainant has not tendered affidavit of any expert, so failed to prove manufacturing defect but as the mobile set wasgot defective from the date of its purchase so the opposite parties are liable to repair the mobile set and replace its defective parts free of costs. But the opposite parties have not repaired the same during warranty period which is deficiency in service and unfair trade practice on their part.

17. As a result of the above discussion and in view of above citation of the Hon'ble National Commission, New Delhi, the present complaint is partly allowed and opposite parties No. 2 and 3 are directed to return the mobile set of the complainant to him after fully repair the same and replacing all his defective parts free of costs. The opposite parties No. 2 and 3 are also directed to give at least six months more warranty to the complainant from the date of handing over the mobile set to him. The opposite parties No. 2 and 3 are also directed to pay Rs. 5,000/- as compensation to the complainant on account of mental tension, harassment and litigation expenses. The opposite parties No. 2 and 3 are  jointly and severally liable to comply with this order. Compliance of the order be made within the period of 30 days from the date of the receipt of the copy of this order. Copy of this order be supplied to the parties free of costs. File be consigned to the records after due completion.

  ANNOUNCED IN THE OPEN FORUM:

23rd Day of July 2019

 

 

            (Kuljit Singh)

           President

 

           (Tejinder Singh Bhangu)                Member