Haryana

Panchkula

CC/120/2015

SANJEEV KUMAR SIWACH. - Complainant(s)

Versus

M/S SHIVAM COMMUNICATION& OTHERS. - Opp.Party(s)

COMPLAINANT IN PERSON.

03 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                  

                                                                  

Consumer Complaint No	:	120 of 2015
Date of Institution	:	24.06.2015
Date of Decision	:	03.11.2015

                                                                                          

Sanjeev Kumar Siwach s/o Sh.Sube Singh Siwach, R/o Flat No.425, Power Colony, Indl. Area, Phase –II, Panchkula.

                                                                                                ….Complainant

Versus

1.       M/s Shivam Communication (An Authorized Service/Collection Centre of HTC Mobile), SCO 38, First Floor, Sector 11, Panchkula, Haryana through its proprietor.

2.       Sh.Sawa @ Sawant from M/s Shivam Communication (An Authorized Service/Collection Centre of HTC Mobile), SCO 38, First Floor, Sector 11, Panchkula.

3.       M/s Ambika Enterprises, SCO No.42, Sector-11, Panchkula.

4.       M/s HTC India Pvt. Ltd. (Dopod), G-4, BPTP Park Centre, Sector-30, Near NH-8, Gurgaon-122001, through its CEO.

                                                                             …. Opposite parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri, Member.

                            

For the Parties:     Complainant in person.

                             Mr.Suresh Kumar, Prop. for Ops No.1 and 2.

                             Mr.Jarnail Singh, Advocate for the OP No.3.

OP No.4 already exparte.

ORDER

(Dharam Pal, President)

 

1. In brief, the complainant had purchased a HTC Desire 600 C (dual sim) handset, IMEI No. 357211050333956 vide invoice No.N-110 dated 10.05.2014 (Annexure C-2) for an amount of Rs.23,800/- with warranty of one year. At the time of purchase of mobile, the salesman of Op No.3 assured the complainant that the handset is all right and it would work effectively. After 6 months of its purchase, the mobile phone was getting switched off while picking up the phone from surface to attend the incoming call. The complainant approached the Op No.3 but it did not pay any heed to the request of the complainant. Thereafter, on 31.03.2015, the complainant approached the Op No.1 for rectification of defect and handed over his mobile phone alongwith invoice vide ticket No.151NA140004821 dated 31.03.2015 and job No.IXC011-0003334. While registering the particulars of handset, the Op No.2 i.e. the executive of Op No.1 wrongly entered the name of complainant as Sanjeev Simanh instead of Sanjeev Siwach and wrongly entered the particulars of warranty i.e. OOW (beyond warranty period) for which the complainant objected and Op No.2 replied that these errors does not matter in any matter. Thereafter, the OP No.2 handed over the receipt to the complainant and retained the handset alongwith accessories i.e. battery and back cover of handset. The complainant again objected and on this, the Op No.2 replied that the accessories were required for proper checking of the handset, as problem may be related to battery linking with handset or other. The complainant demanded the receipt of retention of battery and back cover but the Op No.2 refused to give the receipt. Moreover, it is written on the receipt at Sr.No.2 that “Please ensure to collect back your device back cover, Memory card, SIM card and Accessories, unless requested by service centre”. After some days, the complainant received a call from OP NO.1 that the phone of the complainant was out of warranty and an estimate of Rs.8000/- came out of its repair. On this, the complainant objected that his mobile phone was within warranty period. The Op No.1 again demanded the copy of bill which was duly supplied by the complainant and the OP No.1 changed the job No.IXC011-0003396 manually. Thereafter, the complainant again received SMS from Op No.4 for collection of handset from OP No.1. The complainant visited the Op No.1 and found that the Ops No.1 & 2 had misplaced his battery and back cover and refused to accept their fault. The complainant also refused to take back his handset without accessories and the same is still lying with the Op No.1. This act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops No.1 & 2 appeared and filed written statement. It is submitted that as per company norms, when customer visit the service centre, the customer has to show his bill of product which is mandatory. It is submitted that when the complainant came to service center, one executive asked for the bill but the complainant did not provide the bill of product that’s why the phone was out of warranty and sent to company for repair against job sheet No.IXC011-0003334 and then company given the estimate of Rs.8768/- as repairing cost. It is submitted that the Ops No.1 & 2 did not accept any accessories like battery, charger, back cover, Sim, Memory Card etc. It is submitted that it was clearly mentioned in the job sheet’s terms and conditions that please collect the accessories and the customer signed the job sheet attached with the documents. Thus, there is no deficiency in service on the part of Ops No.1 & 2.
3. The Op No.3 appeared and filed written statement. It is submitted that the complainant purchased a mobile HTC desire 600 C handset via bill No.N-110 on 10.05.2014 for an amount of Rs.23,800/- from the Op No.3. It is submitted that the complainant approached the OP No.3 regarding some problem and he was requested to approach the authorized service center of HTC as his mobile phone was in there warranty period. It is submitted that the Op No.4 is authroised by OP No.4 to repair the handsets. Thus, there is no deficiency in service on the part of Op No.3.
4. Notice was issued to the OP No.4 through registered post  and the same has not been received back served or unserved. It is deemed to be served and the Op No.4 was proceeded against ex-parte vide order dated 09.09.2015.
5. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 & C-2 and closed the evidence. On the other hand, the Ops No.1 & 2 has tendered the evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 and closed the evidence. Similarly, the OP No.3 has tendered the evidence by way of affidavit Annexure R3/A and closed the evidence.
6. We have heard the complainant appearing in person, prop. of Ops No.1 & 2 and learned counsel for the Op No.3 and have also perused the record with utmost care and circumspection. From Annexure C2 it is evident that the complainant had purchased the mobile on 10.05.2014. From a perusal of Annexure C1 it is clear that there was a defect in the mobile handset and it was handed over to OPs No.1 & 2 on 31.03.2015. The complainant has argued that the mobile set became defective during warranty period but despite that the Ops No.1 & 2 i.e. service centre in Annexure C1 has written as OOW (Beyond warranty period). The complainant has further submitted that he had deposited the mobile set with the Ops No.1 & 2 with its requisite accessories but till today the OPs No.1 & 2 have neither repaired the mobile set nor returned back the same forcing him to knock at the door of this Forum and to substantiate his contention the complainant has filed his affidavit as well as documentary evidence. The contention of the appearing OPs is that the accessories have been delivered to the complainant at the time of depositing of the mobile with them and thereafter an intimation was sent for providing the same to Ops No.1 & 2 for checking/inspection of the mobile as well as for rectification of the defect in the same. It is not disputed that the warranty of the averred mobile was for one year and therefore the Ops ceased to take a plea that the mobile was out of warranty.   The contention put-forth on behalf of the Ops No.1 & 2 that the accessories have been handedover to the complainant is also  not trustworthy because in the annexure C1 issued by the Ops No. 1 & 2 the column regarding accessory has been left as blank therefore, it can be easily presumed that the Ops No.1 & 2 have not come to this Forum with clean hands as condition No.2 of this very documents says that Please ensure to collect back your device Back cover, Memory Card, Sim Card and Accessories, unless requested by service centre. Annexure C1 issued by the Ops No.1 & 2 do not reflect that as on which date and time the accessories were returned to the complainant and the Ops have even failed to lead any cogent evidence regarding this.  From the material available on the case file it is very clear that the mobile set is still lying with the Ops No.1 & 2  and the complainant has been deprived  from using the mobile set even after spending enough amount for the mobile set in question.  In totality, the complainant has been able to prove deficiency in service on the part of OPs No.1 & 2 as defined in Sections 2 (f) and 2 (g) of The Consumer Protection Act, 1986 which are reproduced as under:

(f) “defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or 1[ under any contract, express or implied or] as is claimed by the trader in any manner whatsoever in relation to any goods;

(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

 

This forum feel concerned that these days in fast life style of society, cellular set has become part and parcel of every person and due to huge demand of mobiles the companies are attracting the customers by adopting different models of advertisements  but at the same time after selling the mobile set customers as well as consumers face a lot of problem even after paying the full cost of mobile set. In general practice manufactures and retailer/seller play important roll till the delivery of any product in the hands of the customer but the role of the service centre after selling of product by manufactures and retailer/seller  become vital because it has to deal with the customer when any defect occurs in the product upto his/her satisfaction but in the present case the act and conduct of Ops No.1 & 2  are depreciable, therefore, the complaint deserves acceptance qua Ops No.1 & 2 as the Ops No.3 & 4 have no role to play in the working of the Ops No.1 & 2.  Hence, the present complaint is dismissed qua Ops No.3 & 4 and allowed qua Ops No.1 & 2. The Ops No.1 & 2 jointly and severely directed as under:-

1. To replace the mobile set with new one with one year warranty failing which to refund the cost of the mobile i.e. Rs.23800/- alongwith @ 9% per annum from the date of purchase i.e. 10.05.2014 till realization.
2. To pay Rs.5000/- to the complainant towards compensation for mental agony, physical harassment and cost of litigation.

 

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

03.11.2015       S.P.ATTRI       ANITA KAPOOR       DHARAM PAL

                           MEMBER          MEMBER                       PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                 

                                                                   DHARAM PAL

                                                                    PRESIDENT