Haryana

Ambala

CC/219/2012

SANDEEP S/O SH RAJINDER PRASHAD - Complainant(s)

Versus

M/S SQUARE TECHNOLOGY WARE HOUSE - Opp.Party(s)

K.C.JAIN

30 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM :AMBALA

                             Complaint Case No.           :         219 OF 2012

                             Date of Institution                :         27-07-2012

                             Date of Decision                  :         30.10.2015

Sandeep son of Shri Rajinder Prashad, resident of village and post office Ugala, Tehsil Barara, Distt. Ambala.

                                                                                                                                                         :::::::Complainant.

                                                                                                           Versus

1.                M/s G. Square Technology Ware House, 110, Railway Road, Ambala Cantt- 133001.

2.                Dell India Pvt. Ltd. Divyashree Greens, 12/1,12/2-A, 13/1-A, Challaghatta Village Varthur Hobli, Bangalore-560071.

:::::::Opposite Parties.

          Complaint Under Section 12 of the Consumer Protection Act.

CORAM:             SH.A.K.SARDANA, PRESIDENT

                             SH. PUSHPINDER KUMAR, MEMBER

Present:-             Sh. K.C.Jain, Adv.counsel for complainant

                             Sh. A.K.Malhotra,Adv.counsel for OP No.1

                             Sh. A.K.Kaushik, Adv.counsel  for OP No. 2.                  

O R D E R

1.           Brief facts of the present complaint are that the complainant purchased  Dell XCD28 Model mobile phone from OP No.1 duly imported by OP No.2 from China bearing IMEI No. 355280040184664 vide Invoice No.27 dated 8-6-2011 in a sum of Rs.7150/- with a warranty of 1 year. After some time, the said mobile phone started giving problem as Touch Screen failed to work properly and also started shutting down abruptly. Thereafter the complainant immediately contacted OP No.1 who directed to contact Service Centre of OP No.2 company at Chandigarh for rectification of the problem where the complainant contacted on 19-10-2011 and they retained the mobile set in question and  directed to come on 14-11-2011 for  collection  of  his mobile phone but on 14-11-2011, OP service centre issued a fresh mobile phone set of the same model to complainant bearing IMEI No. 355280040087172 as the old mobile set was beyond the repairs. After some time, during the warranty period the new mobile phone so replaced, also failed to perform satisfactorily and thus the mobile phone was again examined by the OP Service Centre and reported that “Touch Pad not working. Tried software update but issue still same need replacement” whereupon said service Centre again issued another phone of the same model with IMEI No. 355280040097957 on 9-4-2012 in lieu of replacement of earlier mobile phone set. But, the replaced mobile phone again started giving the same problem whereupon it established that this model of the mobile phone is having a manufacturing defect, which is beyond repairs of the service centre and thus the complainant served legal notice  dated 23-5-2012 upon OPs through his counsel for refund of cost of the said mobile phone with compensation and harassment but  OP No.2 did not responded to the legal notice whereas OP No.1 denied the facts of notice. Hence, having no alternative, complainant preferred the present complaint seeking relief as mentioned in the prayer para.

 

2.          Notice of complaint served upon the OPs wherein OP No.1 submitted his reply raising preliminary objections qua non maintainability of complaint , the answering respondent is only the retailer not a manufacturer and the complainant has concealed material facts by misrepresenting & misinterpreting  and making false allegations. On merits, it has been urged that the complainant purchased the mobile phone having good knowledge of all the terms and conditions regarding warranty, repair related issues etc. and he has not made any complaint regarding any defects  till date and thus no claim is made out against the answering respondent. In the end, OP No.1 prayed for dismissal of complaint with costs.

 

3.          OP No.2 also filed separate written statement raising preliminary objections qua dismissing the complaint being false, frivolous and incorrect one as there is no deficiency on the part of answering respondent. Further the complainant is guilty of ‘Suggestio falsi’ and ‘Suppressio Vari’ as he has deliberately concealed the material facts and is trying to extract compensation from the answering respondent who is  manufacturer of the mobile phone in question and prayed for dismissal of the complaint being devoid of merits.
4.           In evidence, complainant has tendered his affidavit as Annexure C -X alongwith documents as Annexures C-1 to C-5 and closed his evidence. Whereas on the other hand, counsel for OP No.2 tendered in evidence two affidavits of Sapandeep Kapoor, authorized representative as Annexure RW 2/A & RW 2/B and closed evidence on behalf of OP No.2 and counsel for OP No.1 also tendered affidavit of Mr. Gaurav Gulati, Prop. Of OP No.1 as Annexure R W-1/A and closed evidence of OP NO.1.

 

5.           We have heard the counsel for both the parties and gone through the case file minutely. The main grievance of the complainant is that he purchased  Dell XCD28 Model mobile phone duly imported, sophisticated and user friendly phone in a sum of Rs.7150/- with a warranty of 1 year from the OPs. After some time, the said mobile phone started giving problem of Touch Screen and shutting down abruptly. Thereafter the service centre issued a fresh mobile phone set of the same model after replacing the old one but the replaced set failed to function properly and in this way, the concerned service centre replaced the mobile phone of the same model twice but the  replaced sets failed to perform satisfactorily all the times wherefrom it is established that this model of the mobile phone is having a manufacturing defect. Which is beyond the repairs of service centre.  Besides it, to strengthen his case the complainant  has further relied upon the case law reported in 2008(1) CLT Page 15 rendered by Hon'ble National Commission in case titled as Soni Erricson India Ltd. Vs. Ashish Aggarwal and 2007 (1) CLT Page 614 passed by Hon'ble State Consumer Disputes Redressal Commission, U.T. Chandigarh in case titled as Head Marketing and Communication, Nokia Vs. Ankush Kapoor and other   wherein it is held that inspite of repair of mobile set, it did not work and thus observed that the handset was having inherent defects and refund of cost of mobile was ordered.  On the other hand OP counsel argued that  OP company is  the reputed company and provides world class service to its customers and the complainant has come to this Hon’ble Court just to grab compensation and has filed frivolous & false complaint.

 

6.                After hearing the counsel for both the parties and going through the record, it is crystal clear from the document Annexure C-1 that the mobile set in question of DELL Company  was  sold  by OP No.1 to the complainant on 8-6-2011. Further it is also not in dispute that the mobile set was having a warranty of one year from the date of its purchase and it became defective during the warranty period as revealed from document Annexures C-2 & C-3 job sheets dated 14.11.2011 and 9.4.12 respectively wherein the problem of touch screen & restarting etc. have been specifically reported by the concerned Service Engineer wherefrom occurrence of manufacturing defect is established in said model of mobile phone.

                   So, from the above discussed facts, we have come to the conclusion that the model of mobile set sold to the complainant by the OP No.1  was having inherent defect from its very beginning and the same could not be rectified by the OPs  during the warranty period despite various visits of the complainant to their service centre at Chandigarh. Hence, it is a clear cut case of deficiency in service and unfair trade practice committed by OP No.2. Accordingly we accept the complaint and direct the OP No.2 to comply with the following directions within thirty days from the communication of this order:-

                (i)         to return Rs.7150/- i.e. cost of the mobile set to the complainant alongwith simple interest @ 9% per annum from the date of its purchase to till its realization.

               (ii)         to pay  Rs. 3000/- as  compensation  for  harassment and mental agony etc.

             (iii)           also to pay Rs.3000/- as cost of litigation.

Let the aforesaid order/directions issued above must be complied with by the OP No.2 within a stipulated period failing which all the awarded amounts shall further attract simple interest @ 12% per annum for the period of default. So, the complaint is decided in above terms. A copy of this order be sent to the parties concerned free of cost. File be consigned to the record room after due compliance.     

Announced:30.10.2015                                                         Sd/-

                                                                                       ( A.K.SARDANA)

                                                                                                 PRESIDENT

                                                                                                  Sd/-

                                        ( PUSHPINDER KUMAR )

                                                                                                 MEMBER