Delhi

North East

CC/502/2015

Vijay Kumar - Complainant(s)

Versus

M/s VI Communication - Opp.Party(s)

20 Mar 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. 502/15

 

In the matter of:

 

		Vijay Kumar S/o Sh. Ramesh Chand R/o H.No. 1/5308, Street No.12 Balbir Nagar, Extension, Shahdara East Delhi-110032.		Complainant
		Versus
	1.         2.	M/s VI Communication U-196, 1st Floor, Metro Pillar No.32 Near Bank of Baroda, Shakarpur Delhi-110092.   M/s Micromax Ltd 288-A, Udyog Vihar Phase-IV, Gurgaon-122015. Haryana		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		22.12.2015 20.03.2020 20.03.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant filed before us is that he had purchased a Micromax A300 mobile bearing IMEI No. 911338900583107 and 911338900783103 manufactured by OP2 from Baba Telecom on 29.10.2014 vide retail invoice No. BT1684 for a sum of Rs. 15,500/- inclusive of VAT. However the subject mobile started malfunctioning after few months of its use with problems in power on. The complainant visited OP1 the authorized service centre of OP2 on 11.09.2014 and deposited his mobile against job sheet  No. 315N0N031598-0915-19118041. The subject mobile was under warranty and the officer of OPs assured the complainant to return the subject mobile repaired within one week. However despite visits to OPs office by complainant, OP did not deliver the subject mobile and therefore alleging harassment and deficiency of service on the part of OP causing mental agony to the complainant, be field the present complaint praying for issuance of directions against OPs to refund cost of the mobile i.e. Rs. 15,500/- alongwith compensation of Rs. 50,000/- for mental agony and Rs. 15,000/- towards cost of litigation.

Complainant has attached copy of retail invoice and jobsheet dated 11.09.2014.

2. Notice was issued to the OPs. However none appeared despite service effected on 25.01.2016 and OPs were therefore proceeded against ex-parte order dated 16.03.2016.
3. Ex-parte evidence was filed by complainant where in addition to the documents filed with the complaint, complainant placed on record copy of jobsheet no. NO31598-0715-17841919 dated 10.07.2015 issued by OP when the subject mobile was first deposited by the complainant with it with problem reported as power not getting switched on and battery not charging alongwith copy of e-mails exchange between complainant and OP2 between 19.10.2015 to 23.11.2015 pertaining to unrepaired mobile and lying with OP1 since July 2015 supported by certificate under Section 65B of Indian Evidence Act as mandatory compliance for placing on record electronic data.
4. OP2 entered appearance on 09.03.2017 and 17.05.2017 after which both parties filed respective written arguments in support of their grievance / defence.
5. In the written arguments filed by OP, OP admitted the factum of purchase of subject mobile by the complainant on 29.10.2014 with warranty thereon valid till 28.10.2015 and also the fact that the complainant had deposited the subject mobile on 11.09.2015 with OP2, its ASC but submitted per contra that despite the subject mobile being repaired by OP1, complainant did not collect the same and for which in action on his part, OP2 cannot be held guilty of deficiency of service. Further OP2 urged that there was no manufacturing defect in the subject mobile nor has it being establish by the complainant by way of any authenticated report from the export and therefore prayed for dismissal of the complaint.
6. In the hearing held on 05.11.2019 both parties had mutually resolved the dispute on terms of OP2’s offer to refund the depreciated cost of the mobile quantified as 12500/- (30% deducted for the mobile having been used for 9 months from October 2014 till July 2015) alongwith Rs. 3000/- as compensation for harassment inclusive of litigation charges and OP2 was directed to pay the said amount of Rs. 15500/- to the complainant before the scheduled National Lok Adalat to be held on 14.12.2019. However on the said date complainant resiled from his statement of acceptance of settlement offer. Subsequently, after reopening of the Forum post winter break, OP2 submitted a cheque bearing No. 005666 dated 31.12.2019 drawn on Kotal Mahindra Bank of sum of Rs. 15,500/- in favor of the complainant to honour the settlement arrived at but was declined acceptance by the compolainant
7. We have heard the arguments addressed by the complainant. During the course of oral arguments to the specific query put by this Forum for declining the settlement offer despite having been agreed upon, the complainant submitted that since the payment was not made on the date of national Lok Adalat and mobile was never repaired or price refunded by OPs since July 2015 – October 2015, he had rejected the offer. The complainant was telephonically informed by the staff of the Forum to collect the subject cheque but he refused to accept the same. 

It is not in dispute that the subject mobile purchased by the complainant on 29.10.2014 was deposited after 9 months of use with power switch on issues with OP1, ASC of OP2 while the subject mobile was still under warranty. Thereafter it was again deposited after 2 months on 11.09.2015 with OP1 regarding similar power issues. The subject mobile however was never received back from the OP1 and from the e-mail placed on record by complainant we observed that the complainant had been making fervent request to the customer care of OP2 for early resolution of his problem by way of exchange or warranty extension on the currently mobile. However OP declined to do either on grounds of no exchange policy and warranty extension subject to collection of mobile. Therefore it is clear that the subject mobile was not picked up but nowhere has OP in any of the e-mails to the complainant informed him about the status of repairs of his mobile. Therefore in totality, we finds OPs guilty of deficiency of service in having failed to return the repaired mobile to the complainant which was lying with OPs since September 2015 and despite several e-mail exchange between parties till November 2015 when finally complainant filed the present complaint in December 2015. Holding OPs guilty of deficiency in service, we allow the present complaint.

From the admission of the complainant, he had used the subject mobilefor 9 months within warranty period from October 2014 to July 2015. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Appachu 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. 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 and direct OP1 and OP2 jointly and severally to refund sum of Rs. 13,000/- (depreciated cost of mobile) alongwith compensation of Rs. 3,000/- towards mental harassment inclusive of litigation charges. Let the order be complied with by OPs within 30 days from the date of receipt of copy of this order.

8. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
9.   File be consigned to record room.
10.   Announced on  20.03.2020

(N.K. Sharma)     President

(Sonica Mehrotra)  Member