BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.05  of 2019

      Date of Instt. 02.01.2019

      Date of Decision: 30.10.2023

Dhiraj Sharma aged about   years son of Shri Rajinder Sharma, resident of Shop No.123, MBD Shopping Complex, Naaz Cinema, Jalandhar.

..........Complainant

Versus

1.       M/s VIVO Mobile Pvt. Ltd., Tec 1 & Tec 2, World Trade Centre,     Plot no.TZ-13-A, Techzone (I. T. Park), Greater Noida, Uttar Pradesh through its Director/M. D./Authorized Signatory.

2.       M/s Labquest Engineering Pvt. Ltd., Lotus Tower, EH-198,     Office No.4, Ground Floor, Civil Lines, Near Gujrat Palace,         Jalandhar through its Manager/Incharge/Authorized Signatory.

3.       M/s Mobile House, H. O. Chadha Mobile House Pvt. Ltd., Near       Bhagat Singh Chowk, Jalandhar through its      Manager/Incharge/Authorized Person.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

Present:       Sh. Baldev Raj, Adv. Counsel for the Complainant.

                   Sh. T. K. Badhan, Adv. Counsel for OPs No.1 and 2.

                   OP No.3 exparte.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had purchased VIVO Mobile Y53 from OP No.3 on 19.05.2017 vide Invoice/Bill No.7108 for Rs.9,200/-, having IMΕΙ No.864666034997299. At the time of purchasing the said Vivo mobile Phone, the complainant was assured that there is one year warranty for the phone and if during that period, if there is any mis-functioning/problem in the phone then the company i.e. OP No.1 alongwith OP No.2 will take care of that and the complainant/purchaser would have to bear no expenses. From the very beginning the mobile set started creating problems. The phone used to hang while receiving the call and dialing the same, network problem, non connectivity of internet and the phone was not responding. The complainant was very much surprised about its mis-functioning and the complainant visited OP No.3, who was asked the complainant to contact the OP No.2 who is authorized service center of OP No.1. The complainant visited OP No.2 and apprised the OP No.2 of the said defect and the engineers of the OP No.2 had checked the mobile phone thoroughly and had observed that there is problem with said mobile phone and made comments and the complainant was asked to receive said mobile phone after two hours and job card dated 12.05.2018 was issued to the complainant. After two hours the complainant again visited the OP No.2 and the complainant was surprised to know that the defect in said mobile phone has not been rectified and when the complainant enquired from the official concern of OP No.2, the complainant was told that the software of said mobile has been updated. The complainant was surprised as said mobile was again started creating same trouble and the complainant requested the officials of OP No.2 to rectify the same or to change the defective mobile with a new one as the same is within warranty period, to which the officials of the OP No.2 never agreed. Thereafter, the complainant again visited OP No.2 and requested the official concern to do the needful and to rectify the defect in his mobile, but the OP No. 2 refused to listen to the request of the complainant. The negligence in providing service properly to the complainant has caused lot of harassment to the complainant. Inspite of his visits at the service centre, his problem has not been cured. The complainant asked the opposite parties to replace the set, but the OPs have refused to do so. The OPs are also responsible for causing mental tension, harassment and agony to the complainant and have failed to remove the defect of the above said handsets which is in warranty period. Thereafter, the complainant visited several times to the OP No.2 and repeatedly requested to do the needful and to rectify the defect in the said mobile and the complainant was told by the official concern that they will provide a new handset of same mobile to the complainant. The complainant requested the official of OP No.2 that said VIVO Mobile Y53 is having some inherent manufacturing defect as experienced by the complainant, thus, the complainant requested the official of OP No.2 to change said handset and the complainant also told the official concern of OP No.2 to pay the difference, if any, to which the OP never agreed. Feeling aggrieved the complainant served legal notice upon the OPs on 18-5-18, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the mobile handset of the complainant with a new handset or to refund the value of the mobile i.e. Rs.9200/- alongwith interest @ 18% per annum from the date of its purchase. Further, OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.11,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, but despite service OP No.3 failed to appear and ultimately OP No.3 was proceeded against exparte, whereas OPs No.1 & 2 appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that the consumer complaint filed by the complainant is not maintainable in the present form. The complaint is false, vexatious and frivolous and is liable to be dismissed with exemplary costs under Section 26 of the Consumer Protection Act, 1986. It is further averred that the Complainant has not come with clean hands. The Complainant has tried to mislead the Forum by not bringing to the notice of the Forum all the facts necessary for the fair disposal of the complaint. The complainant has suppressed that:

(a)               That the Complainant purchased mobile phone of Model Y53 with IMEI Number 864666034997299 on 19.5.2017 vide Invoice/Bill No.7108. The said Complainant had no issue with the handset for next 11 months. Then on 12.5.2018 i.e. just 8 days before the expiry of the warranty period the Complainant visited the Service Center saying that the mobile phone used to hang while receiving the call and dialing the same, network problem, non connectivity of Internet and phone not responding. The Complainant also complained of hang problem while using Whats App Facebook etc. Regarding the said problem a Job Sheet was prepared by the Service Center on 12.5.2018.

(b)               On 12.5.2018, the Engineers of the Service Center checked the handset but found that there was no problem with the handset. The Complainant was duly informed that there exists no such problem as is being reported to them by the Complainant. The Service Engineers informed the Complainant that there was no manufacturing defect in the handset in question.

(c)               That the Complainant then requested the Service Center Engineer to update the software version. On request of the Complainant, the software version of the said mobile phone was updated without any charges. The update was done solely for customer satisfaction even though there was no fault found. The Complainant received the said mobile phone after duly recording his satisfaction on the job sheet No.AINPB0108180500370 and signed the said job sheet after being fully satisfied with the proper functioning of the said mobile phone.

(d)               The Job Sheet No.AINPB0108180500370 has been attached herewith.

(e)               The Complainant after that never visited the Service Centre again. As per company policy the Service Centre has to issue a job sheet whenever the Service Centre receives any mobile/product for repair etc. The Complainant has not brought before the Forum any job sheet after 12.5.2018 to show that the Complainant again visited the Service Centre.

(f)                The Complainant was adamant in not showing the problem to the Engineers present at the Service Centre, but was insisting replacement only as per his whims and fancies for getting undue benefits against the terms and conditions of warranty.

(g)               The defects in the said mobile phone have not accrued due to quality issues. So replacement of the said mobile phone is not permissible as per terms and conditions of warranty. The said mobile phone was used for almost a year without any problem being faced by Complainant. So story of manufacturing defect is a concocted one. The concoction has been done just for seeking replacement as per whims and fancies of the Complainant. The due services have always been rendered to the Complainant free of cost.

                   It is further averred that the complaint has been filed for abusing the process of law, so as to get undue advantage by harassing the answering OPs. Complainant in greed twisted has the facts for his unjust enrichment. The Complainant with a malafide intention is trying to portray a wrong picture since he wants the OPs to replace the handset and have a fresh one year warranty on the new hand set and also wants to have other monetary benefits, to which otherwise the Complainant has no lawful right. It is further averred that the intricate question of law and facts are involved requiring elaborate evidence, so the Complainant should approach the Civil Court of competent jurisdiction because proceedings before the Forum are summary in nature only. It is further averred that the OP 1 is a company of repute, rendering services to the full satisfaction of its customers. This complaint has been filed deliberately for tarnishing the image of the OPs, despite the fact that it always rendered due and satisfactory services to Complainant as well as to each and every other customer. It is further averred that vague and general allegations regarding the deficient services have been leveled by the Complainant just for causing unnecessary harassment to the Complainant. The Complainant has not produced any report of an expert to support his claim that the said mobile handset has any manufacturing defect. Even the alleged manufacturing defect is not pointed out but vague and general allegations have been leveled without any rhyme and reason. Story of defect in the said handset is a cooked story because had defect been there, then the Complainant would not have been able to use the mobile for more than 11 months without any complaint of fault. It is further averred that the Complainant has not mentioned all the documents on which he wants to rely at the time of producing evidence. So, the Answering OPs are being kept in dark, due to which they reserve the right to file fresh written statement as and when more documents are produced by the Complainant. Complete copy of documents have not been supplied, so the Complainant may be directed to supply the documents intended to be relied upon. It is further averred that as due services for updating software have been given to the Complainant free of cost and as such no cause of action accrues in favour of the Complainant, more so when he himself has not availed further services by not attending or responding to the calls by the Company or service centre. On merits, the factum with regard to purchase of mobile handset with one year warranty by the complainant is admitted and it is also admitted that the complainant visited the OP No.2 on 12.05.2018 and complaint of some defects in the said mobile phone to OP No.2 regarding which the job sheet was prepared and the factum with regard to serving a notice upon the OPs by the complainant is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder not filed by the complainant.

4.                The parties have led evidence in support of their respective versions by way of affidavits and documents.

5.                We have heard the learned counsel for the parties, carefully gone through the complaint, written version of the complainant and evidence and documents brought on the record by the parties.

6.                The complainant has proved on record Ex.C-1, the Invoice vide which the complainant has purchased Vivo Y53 for Rs.9200/- on 19.05.2017. As per the allegations of the complainant, the mobile started giving problem from the very beginning. The phone used to hang while receiving the call and dialing the same, network problem, non-connectivity of internet and the phone was not responding. The complainant has proved on record the job card Ex.C-4/Ex.OP1&2/1 and handover job sheet Ex.OP1&2/2 dated 12.05.2018. These documents are the job cards and handover job sheet which show that in the column of ‘Fault’, it has been mentioned that ‘fault not reproduce’ and in the column of ‘Description of Appearance’, it has been mentioned that ‘used scratches on battery cover and LCD’ and Solution has been mentioned as ‘Software Upgrade’. In the column of ‘Fault Cause’, it was found that ‘No Fault’. These documents bear the signatures of the complainant, wherein it has been mentioned that he has received the mobile set in good working condition on 12.05.2018 i.e. within warranty period of one year and it was repaired as warranty repair. Ex.C-5 and Ex.OP1&2/3 shows the complaint of the complainant regarding the mobile and this document shows that he has given the handset with the complaint of hang problem etc. and he has accepted the conditions and guidelines mentioned in these documents. The guidelines, in which it has been mentioned that the software will be updated after the repair of the mobile. The complainant has alleged that after receiving the mobile, it again started giving problem and when he requested, the OP refused to repair the same or rectify the problem within warranty period.

7.                As per the documents, the mobile was purchased on 20.05.2017. The mobile phone was handed over to the OP for repair on 12.05.2018 and the warranty was upto 20.05.2018. The complainant has alleged that it was within warranty when it started giving problem again. The complainant has not produced on record any document to show that the mobile was again given to the OP for repair within warranty period nor any date has been mentioned by the complainant in the complaint to prove when did the mobile start giving problem after the receipt of the same in good condition on 12.05.2018. The warranty period was up till 20.05.2018, but the complainant has not mentioned the date and time to show that it was within warranty period when he again approached the OP No.2 or the handset started giving problem immediately after receipt of same or it was having same problem. The complainant has alleged that he approached the OP No.2 to change the handset, but there is no document to show that he ever approached for the change of the handset on the ground that the same started giving problem again. No inherent defect after the repair has been proved on record by the complainant. In such circumstances, the OPs cannot be directed to change the handset, however, the OPs are directed to repair the handset, if the same is brought before the OP, by the complainant for the repair at the expenses of the complainant, since the warranty period expired on 20.05.2018. Thus, the complaint of the complainant is disposed of. This complaint could not be decided within stipulated time frame due to rush of work.

8.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                        Jyotsna                       Dr. Harveen Bhardwaj     

30.10.2023                     Member                               President