BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 361 of 2015
Date of Institution: 04.06.2015
Date of Decision: 28.04.2016
Rajiv Kumar son of Sh.Sham Lal, resident of Plot No. 56, Gali No.3, Gobind Nagar, in front of Mandir Wala Bazar, Sultanwind Road, Amritsar.
Complainant
Versus
- North India Top Company (P) Limited, TCI Supply Chain Solutions, C/O Acorn Warehouses and Logistics Park, 68, Vill. Kapriwas & Malpura, Rewari through its authorized signatory/ Manager/ Principal Officer/ Overall Incharge.
- For Spice Retail Limited, authorized service Centre, Cell Point, Shop No. 201, 2nd Floor, Sunrise Plaza, Cooper Road, Near Bakewall Bakery, Amritsar through its overall Incharge.
- S.Mobility Ltd. S.Global Knowledge Park, 19A & 19B, Sector 125, Noida, Utter Pradesh through its Manager/ Principal/ Overall Incharges.
Opposite Parties
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 (as amended upto date).
Present: For the Complainant: Sh.Deepak Bhandari, Advocate
For Opposite Party No.1: Sh. Anil Sharma, Advocate
For Opposite Party No.2: Exparte.
For Opposite Party No. 3: Sh.Ajay Mehta, Advocate.
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Rajiv Kumar has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant purchased a Mobile Spice Model No.MI 436, having IME No. 911256503266476, from Opposite Party No.1 bearing Invoice No. NITCDRH/DRH/ 03/2014/1362258 vide online order dated 12.3.2014 for a sum of Rs.5499/-, which was received by the complainant on 18.3.2014, and it was manufactured by Opposite Party No. 3, with one year warranty to be provided by Opposite Party No. 3, copy of invoice attached. As such, the complainant is ‘consumer’ as provided under the Consumer Protection Act and is competent to invoke the jurisdiction of this Forum. From the very beginning, the Mobile Set in dispute started creating problems like hardware and getting hang while on receiving call and the sound quality was very down/ low and also mobile auto went off while attending call as well as auto rotate and it was not working properly. Firstly, the complainant visited Opposite Party No.2 on 19.07.2014 vide job sheet No. 19100043E70159 with respect to said defects in the Mobile Set in dispute and it was told by Opposite Party No.2 to the complainant that Mobile Set has to be sent to Opposite Party No. 3 for removal of defects. Mobile Set in dispute was returned to the complainant after 50 days with an assurance that the Mobile Set in dispute was OK. But again Mobile Set in dispute started creating same problems after few days and again the complainant visited Opposite Party No.2 with same request in his Mobile Set on 16.9.2014 vide job sheet No. 16980190 and it was returned after 10 days to the complainant, but the said Mobile Set again started creating same problem and finally on 11.3.2015 the complainant visited Opposite Party No.2 vide job sheet No. 19100043F30086 with request either to change the Mobile Set in dispute with new one or to remove the defects in it, but Opposite Party No.2 again told the complainant that it was again sent to Opposite Party No. 3. The complainant visited time and again to Opposite Party No.2 with the request to return his Mobile Set, but Opposite Party No.2 neither returned the Mobile Set of the complainant nor given any satisfactory reply and the complainant is being harassed by the said act and conduct of the Opposite Parties. As such, the complainant prays for the following relief against Opposite Parties.
a) The Opposite Parties be directed to replace the Mobile Set in dispute to the complainant with new one of the same make and model or in alternative refund the price of the Mobile Set in dispute with interest @ 12% per annum from the date of payment till realization.
b) Opposite Parties be directed to pay the compensation of Rs.50,000/-
c) Opposite Parties be directed to pay the adequate cost of the litigation.
Hence this complaint.
2. Upon notice, opposite parties No.1 & 3 appeared and contested the claim of the complainant. Opposite Party No.2 was duly served, but none put in appearance on their behalf, as such Opposite Party No.2 was proceeded against exparte. Opposite Party No.1 filed the written statement taking preliminary objections therein inter alia that all the allegations made in the instant complaint qua Opposite Party No.1 are false, incorrect and baseless and therefore denied. The present complaint has been instituted for the sole purpose of harassment of Opposite Party No.1 and extortion of money from it; therefore, the complaint is misconceived and liable to be dismissed with costs. Admittedly, the complainant purchased the Mobile Set in dispute on 12.3.3014 and received it on 15.3.2014. The complainant admittedly post using the product for 4 months and then submitted the same to Opposite Party No.2 i.e.Authorised Service Centre of Opposite Party No. 3 due to defect (auto off, poor sound quality) for repairing / replacement as per the terms and conditions of warranty card. The main allegations under present complaint pertain to deficiency in after sale service of the product, which is evidently during warranty period and which is attributed to manufacturer of product i.e. Opposite Party No. 3 and Opposite Party No.2 i.e.Authorised Service Centre and there is no allegation for deficiency in service qua answering Opposite Party. Further Opposite Party No.1 can not be vexed with liability of deficiency in services on behalf of Authorised Service Centres and the manufacturer of the product in question during the warranty period, if any. It is stated that Opposite Party No.1 is different legal entity having different roles and part to play and Opposite Party No.1 can not be attributed with deficiency in services for non performance on the part of Opposite Party No. 3 and its authorised service centre i.e. Opposite Party No.2. The role of Opposite Party No.1 is restricted to receiving the order and delivering it online. Moreover, there is no averment with regard to deficiency in service alleged in the complaint qua Opposite Party No.1. The complaint is liable to be dismissed on this ground qua Opposite Party No.1. On merits, the Opposite Party No.1 took the same and similar pleas as taken by them in preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In their separate written reply, Opposite Party No. 3 took up certain preliminary objections therein inter alia that the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed; that the present complaint is not maintainable as there is no deficiency on the part of answering Opposite Party as alleged or at all, in the complaint; that the answering Opposite Party possesses a goodwill and have an established market and have assumed a good reputation over the years in respect of the business, which they carryout. On merits, it is stated that whenever the complainant approached Opposite Party No.2 i.e.Authorised Service Centre for repair of the Mobile Set in dispute under limited warranty terms, he was given due and proper services and duly repaired the Mobile Set in dispute was handed over to him in a perfectly working condition within a stipulated time period. It is further stated that the complainant visited Opposite Party No.2 i.e.Authorised Service Centre on 13.3.2015 with Mobile Set in dispute in a ‘dead’ condition The Mobile Set in dispute was diagnosed thoroughly and it was found that ‘CMM AND SMD TEMPERED’, which amounted to PHYSICAL DAMAGE. Accordingly, the Mobile Set in dispute was declared ‘Warranty Void’ under the terms of limited warranty conditions and the complainant was asked to deposit the requisite repair charges which the complainant refused to deposit, but these facts have been suppressed by the complainant in his complaint. With this mischievous act, the complainant is trying to mislead this Forum with a view to gain undue advantage, which is nothing but a flagrant abuse of the process of law. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
4. In his bid to prove the case, ld.counsel for the complainant tendered into evidence the affidavit of complainant Ex.CW1/A, copy of retail invoice dated 13.3.2014 Ex.C1, copy of service request dated 19.7.2014 Ex.C2, copy of service job sheet dated 16.9.2014 Ex.C3, copy of service request dated 11.3.2015 Ex.C4 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence of the complainant, Opposite Party No.1 tendered into evidence affidavit of Sh.Rajiv Mehra Ex.OP1/1, copy of retail Invoice Ex.OP1/2, copy of purchase order Ex.OP1/3, copy of warranty card Ex.OP1/4, copy of authority letter Ex.Op1/5 and closed the evidence o behalf of Opposite Party No.1.
6. On the other hand, ld.counsel for Opposite Party No. 3 tendered into evidence the affidavit of Sh.B.M.Aggarwal Ex.OP3/1, copy of service request Ex.OP3/2 and closed the evidence on behalf of Opposite Party No. 3.
7. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
8. From the appraisal of evidence on record, it is proved that the complainant purchased the Mobile Set in dispute vide retail invoice, copy whereof is Ex.C1. It is also proved on record that at the time of filing the instant complaint, the Mobile Set in dispute was suffering from certain defects as detailed in the complaint and for the first time, the Mobile Set in dispute was given for repair to Opposite Party No.2 i.e.Authorised Service Centre of Opposite Party No. 3 on 19.7.2014 vide Service Request, copy whereof accounts for Ex.C2. It is further in evidence that the defects pointed out by the complainant in the Mobile Set in dispute were not removed by Opposite Party No.2 i.e.Authorised Service Centre of Opposite Party No. 3 company and the complainant had to approach Opposite Party No.2 i.e.Authorised Service Centre on 16.9.2014 vide job card, copy whereof is Ex.C3. But, however, the defects pointed out in the Mobile Set in dispute were not removed to the satisfaction of the complainant and he had to approach Opposite Party No.2 i.e.Authorised Service Centre again on 11.3.2015, copy of service request is Ex.C4. It is the case of the complainant that his Mobile Set was retained by Opposite Party No.2 i.e.Authorised Service Centre and the same has not been returned to him so far. Since, Opposite Parties have failed to repair the Mobile Set in dispute & it has been contended on behalf of the complainant that there was inherent/ manufacturing defect in the Mobile Set in dispute, therefore, the Mobile Set in dispute was required to be replaced with new one of same make and quality at the risk and costs of Opposite Parties. But however, the complainant has not produced on record any expert evidence to prove that the Mobile Set in dispute was suffering from some manufacturing defect or same was beyond the scope of repair. In that eventuality, the claim of the complainant that he requires replacement of the Mobile Set in dispute can not be accepted at this stage. In our opinion, the Opposite Parties shall repair the Mobile Set in dispute to the satisfaction of the complainant, within 30 days from the receipt of the copy of this order, failing which, the complainant shall be entitled to refund the price of the Mobile Set in dispute to the tune of Rs. 5499/- alongwith interest @6% per annum from the date of passing of this order until full and final recovery. All the Opposite Parties are held to be liable jointly, severally and co-extensibly. The complaint stands allowed accordingly. Copies of the order be supplied to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 28.04.2016. (S.S.Panesar) President
hrg (Anoop Sharma) (Kulwant Kaur Bajwa) Member Member
