Delhi

North East

CC/155/2015

Kuldeep Kr. - Complainant(s)

Versus

M/s Xolo Company - Opp.Party(s)

22 Oct 2018

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. 155/15

 

In the matter of:

	Sh. Kuldeep Kumar S/o Harpal Singh R/o A-1/38, Gali No.1, Pardhan wali Gali, Johri pur, Delhi-110094.	Complainant
	Versus
1.       2.       3.	M/s XOLO Company A-56, Sector-64 Noida, U.P.- 201301   M/s XOLO Mobile Service Centre C-26/1, Gali No.1, Near Bhajanpura Stand Bhajanpura, Delhi-110053.   M/s Tele Talk Mobile Centre C-21, Near Main Bus stand, Bhajanpura, Delhi-110053.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

29.04.2015 18.10.2018 22.10.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Briefly stated the case of the complainant is that he had purchased a mobile phone Q-2000 white XOLO from OP3 (authorized dealer) of OP1 (manufacturer) on 15.04.2014 vide bill no. 727 for a sale consideration of Rs. 14,700/- with one year guaranty. However, the said mobile went out of working order in January 2015 and on 27.01.2015 the complainant approached OP2 (service centre) of OP1 where OP2 given work order receipt no. 310001111491 to the complainant and took the defective mobile for repairs. Thereafter complainant stated that after 15 days he personally visited the OP2-service centre and enquired about his mobile phone where OP2 intentionally and willfully did not give proper reply to him. Further the complainant stated that OP2 issued work order No. 3100011162287 on 17.02.2015 after the expiry of 15 days of service warranty. Thereafter complainant again contacted OP2 regarding his mobile phone but OP2 neither reply nor replace the said mobile phone after repeated request and demands. Therefore complainant made several complaints to OP2 No. 56847 dated 13.02.2015, 58117 dated 14.02.2015, 65415 dated 18.02.2015, 706363 dated 20.02.2015 but all in vain. Thereafter complainant issued a legal notice dated 28.02.2015 to OPs but OPs did not reply.  Lastly the complainant stated that due to non availability of the mobile he could not appear for online exams of Intelligence Bureau, NIC and LIC rendering the coaching taken by him wasteful expenditure. The OPs threatened the complainant and refused to handover the said mobile. Therefore, complainant constrained to file the present complaint before this Forum praying for issuance of directions against the OPs to pay Rs. 10,00,000/- towards compensation or suffering of lot of mental pain, agony, career and financial turmoil, Rs. 1,00,000/- towards harassing and Rs. 25,000/- towards litigation charges.

Complainant has annexed copy of legal notice dated 28.02.2015 to the OPs, copy of bill no. 727 dated 15.04.2014 for purchase of mobile phone, copy of jobsheets dated 27.01.2015, 17.02.2015, 10.03.2015, copy of admit card for Assistant Central Intelligence Officer Grade II exam 2014, online application form for recruitment of assistant in National Insurance Co. and online application form for recruitment of Assistant Administrative officer in LIC Co., copy of complaint before Mediation Centre, copy of Mediation order dated 23.04.2015, copy of CBSC and Vocationaltraining centre certificate etc alongwith the complaint.

2. Notice was issued to the OPs on 05.06.2015. OP1 and OP2 entered appearance and filed written statement on 04.12.2015 and offered settlement by way of payment of Rs. 10,000/- towards full and final settlement. None appeared for OP3 despite service effected on 23.09.2015 and was therefore proceeded against ex-parte vide order dated 02.02.2016. in the written statement filed by OP1 and OP2 it took the preliminary objection that the complainant had purchased the subject mobile in April 2014 from OP3 after having full satisfaction with the mobile and there was no manufacturing defect in the mobile phone in question since as per the complainant’s own admission, he had approached OP2 for the first time with the complaint in January 2015 i.e. after a period of 9 months of use. OP1 and OP2 further took the defence that OP1 provides warranty for a period of one years in their handsets and services within this period and guarantees to repair or replace free of charge any part of parts of the product where the defect due to the fault in product, parts / material or workmanship. Warranty involves repairing of defective products/parts and does not entitled purchaser for the replacement of complete product. OP1 and OP2 further contended that the complainant had approached OP2 regarding his complaint on 02.04.2015 when the said repaired handset was made ready to be handed over to the complainant by OP2 on 07.04.2014 but complainant was not ready to collect the handset which still lying with OP2 and therefore prayed for dismissal of the complaint as there was no deficiency of service or case against OP1 and OP2.
3. Rejoinder and evidence by way of affidavit was filed by the complainant in reiteration of his grievance against the OPs of having sold a defective mobile phone to him which was suffering from manufacturing defect and did not repair or replace the same despite the same under warranty.
4. Joint Evidence by way of affidavit was filed by OP1 and OP2 in reiteration of their defence taken in written statement of having duly repaired the mobile in question and on the contrary it was complainant’s failure in not having collected the same from OP2.  On hearing held on 23.11.2016, there was a revised offer of settlement made by OP1 and OP2 to the complainant towards refund of full invoice value i.e. cost of mobile to the complainant. However the complainant refused to accept the same and demanded Rs. 20,000/-. On hearing held on 09.02.2017, OP1 and OP2 further enhanced the settlement offer by adding Rs. 1300/- towards expenses for damages over and above the cost of mobile i.e. 14,700/-, thereby totaling Rs. 16,000/- to which the complainant had agreed and was directed to bring the original bill, jobsheet and accessories on the next date of hearing fixed on 08.03.2017. On hearing held on 08.03.2017, the OP submitted cheque no. 035268 dated 13.02.2017 drawn on HDFC Bank KG Marg, Delhi in favour of the complainant for a sum of Rs. 16,000/- before this Forum however the complainant was not present and therefore the matter was adjourned to 15.03.2017 on which date the complainant retracted from his earlier statement made on 09.02.2017 and declined to accept the said cheque which was therefore returned to OP and in view of the failure of the settlement the parties were directed to file written arguments which orders was complied with by both the parties on 15.05.2018 after which the oral arguments were heard on 18.10.2018.
5. In the written arguments filed by the complainant the complainant argued that he was not returned his mobile phone by the OPs in connivance with each other and due to no proper service of the mobile by the OPs who had intentionally and dishonestly retained his mobile phone, the complainant had to suffer and face problem with his education and online classes and could not attend the examination of Intelligence Bureau and other exams of NIC and LIC. In its written arguments, the OPs argued that the complaint was about to be settle between the parties for Rs. 16,000/- but the complainant refused to accept the amount solely to harass the OPs to extract illegal money out of pure greed. OPs further relied upon the judgment of City Municipal Corporation Vs S.A. Latif Co. (AIR) 2004 KANT 491 in their argument that the complainant failed to establish any manufacturing defect in the said mobile or file any expert opinion in this regard. Further OPs argued that the relief sought by the complainant are beyond the agreed terms and conditions of warranty and outside the ambit of Section 14 (1) (d) of the Act since as per the settled proposition of law laid down by Hon’ble Apex Court and Hon’ble National Commission,{Sushila Automobile Ltd Vs Dr. Birendra Narayan and Ors 3 (2010) CPJ 130 (NC)} replacement of product and /or refund of price cannot be granted until and unless complainant has proved by cogent, credible and adequate evidence supported by opinion of a technical expert that the product suffered from inherent manufacturing defect. OPs further relied upon judgments of Hon’ble Supreme Court in Stereocraft Vs Monotype India Ltd and Maruti Udyog Ltd Vs Susheel Kumar Gabgotra to buttress their arguments of clearly defined terms and conditions of warranty as the law has been laid down by Hon’ble Supreme Court in Bharathi Knitting Vs DHL Worldwide case and therefore prayed for dismissal of the present complaint as under Section 14 (1)(d) of CPA compensation can be awarded  to a consumer only in respect of loss or injury suffered due to negligence of OP but in the present case the complainant had failed to prove the same.
6. We have heard the rival contentions of both the parties and have given our anxious consideration to the documentary evidence placed on record and arguments advanced before us.

It can be seen from the jobsheets filed by the complainant that the model no. Q2000 purchased by the complainant was changed to Q2500 in jobsheet dated 17.02.2015 with a different IMEI No. which handset, the complainant did not agree for and wanted his original Q2000 handset and therefore the same was submitted back. In the jobsheet dated 10.03.2015, the original Q2000 model was handed over to the complainant but with a changed IMEI No. as pointed out by counsel of OP. Further at the initial stage of the complaint, the OPs had offered settlement since December 2015 and had revised/enhanced the same from time to time and had finally offered Rs. 16,000/- in February 2017 which was agreed upon by the complainant only to be rejected a month later.

We do not appreciate such fickle mindedness and greed shown by the complainant before this Forum notwithstanding our observation that the OPs acted negligently in selling a defective handset which had to be repeatedly submitted for repairs every month in January, February and March 2015 and changing the model and handing over a different mobile phone. The complainant however has failed to counter or explain as to why he did not pick up the repaired mobile in April 2015 from OP2 and instead filed the complaint before us.

7. In view of the facts of the case and documentary evidence placed on record, we direct all the OPs jointly and severally to refund the price / cost of the defective mobile phone i.e. Rs. 14,700/- to the complainant. We further direct the OPs jointly and severally to pay a sum of Rs. 3,000/- as compensation for mental pain and agony and Rs. 2,500/- towards litigation expenses to the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order.
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  22.10.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member