DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.48 of 2017
Date of institution: 20.01.2017 Date of decision : 11.10.2018
Parkash Singh aged about 36 years son of Dalbara Singh, resident of New Hari Enclave, Randhawa Road, Kharar District, SAS Nagar (Mohali).
…….Complainant
Versus
1. National Time & Tune, Opp. Baijnath Kapoor, Near HDFC Bank, Landran Road, Kharar, (District Mohali) its Proprietor/Incharge (Seller).
2. NU Tech. Enterprises, SCO No.495-496, 1st Floor, Sector 35/C, Chandigarh India through its Incharge/Manager (Service Centre).
3. Videocon Industries Ltd., Corporate Office – Plot No.296, Udyog Vihar, Industrial Area, Phase-2, Gurgaon – 122001 (HR) (Manufacturer).
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Kulwinder Singh, counsel for complainant.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased one new mobile of Videocon Model Z45QSTARGRYSLV (Black) with IMEI No.911465600120243 for an amount of Rs.5,300/- from OP No.1 on 24.01.2016. Said mobile set was carrying warranty for one year from the date of purchase. OP No.2 is service centre, whereas OP No.3 is manufacturer of mobile hand set. This mobile hand set started giving problem like distorted incoming sound and distorted outgoing sound etc. from the date of its purchase. Complainant approached OP No.2, who informed that software of the said mobile set needs to be reinstalled. After some days, said mobile phone again started giving same problem and OP No.2 again was approached. Repair again was done and mobile phone returned with assurance that it will not create the said problem now. However, on 17.07.2016 mobile set started giving same problem and on approach to OP No.2, mobile set was retained by OP No.2 with assurance of returning the same after due repairs after 20-25 days. Service report/receipt in this respect was issued in which problem of distorted incoming sound and distorted outgoing sound voice was mentioned with remarks “MIC and RECV sound distorted changed but same issue”. Thereafter complainant contacted OP No.2 after 25 days, but failed to get any satisfactory reply. Complainant was again called to visit after 20/25 days for getting back repaired mobile set and accordingly complainant visited OP No.2, but again this time OP No.2 disclosed as if mobile set is having manufacturing problem and it cannot be repaired. Complainant requested OP No.2 for repair or replacement of mobile set, but OP No.2 procrastinated the matter. Complainant had been visiting office of OP No.2 repeatedly for getting mobile phone, but OP No.2 putting off the matter on one pretext or the other. On 03.12.2016, when complainant approached OP No.2, then the later called upon complainant to take his set back by refusing to repair or replace the mobile set. However, OP No.2 claimed that they can provide another mobile hand set to complainant. It is claimed that there is major fault in the mobile hand set in question and same is lying in custody of OP No.2 till date. By pleading deficiency in service on part of OPs, prayer made for directing OPs to refund price of mobile set namely Rs.5,300/- or replace the handset with new one. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.15,000/- more claimed.
2. OP No.2 and 3 filed joint reply by admitting that complainant purchased Videocon Mobile Phone for Rs.5,300/-, but it is claimed that allegation of deficiency in service leveled with malafide intention and without any cause. Complaint alleged to be based on false and frivolous facts. Qua communication between dealer and complainant nix cannot be commented by OP No.2 and 3. Admittedly complainant deposited the set with OP No.2 on 17.07.2016 and on 06.08.2016, but it is claimed that OP No.2 has fixed problem of audio issue and thereafter gave intimation to complainant. OP No.2 called upon complainant to collect mobile phone after resolution of issue and thereafter complainant came to OP No.2 on 23.08.2016. Complainant after complaining about scratches in the cosmetics again lodged the complaint. The set became ready for delivery on 31.08.2016. OP No.2 registered a call and did all his job relating to replacement of cosmetics and resolving the issues as well as of informing the customer. Allegations regarding mobile set in question as not repairable or having manufacturing defect, denied one by one each. Other averments of the complaint including that of deficiency in service denied, by praying for dismissal of the complaint. Pawan Kumar, Prop. Of OP No.1 suffered statement on 11.10.2017 for adopting written statement of OP No.2 and 3 and after record of this statement case was posted for evidence of complainant.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and thereafter closed evidence. None turned up for OPs thereafter and as such evidence of OPs was closed by order dated 16.04.2018. However, thereafter none appeared for OPs and they were proceeded against ex-parte.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. From pleadings of the parties and contents of affidavit Ex.CW-1/1, it is obvious that mobile set in question purchased by complainant for Rs.5,300/- through invoice Ex.C-1 from OP No.1 on 24.01.2016 was having warranty of one year. Copy of the warranty card in this respect produced on record as Ex.C-2, perusal of which reveals that warranty period for hand set is one year, but for accessories like battery, charger etc. is 6 months from the date of purchase of hand set. So certainly submission advanced by counsel for complainant has force that this mobile hand set was having warranty upto 23.01.2017. Contents of affidavit Ex.CW-1/1 establishes that defect in the mobile hand set erupted after few days of its use and that is why same was taken to OP No.2 on 17.07.2016 for resolving those issues. Copy of the relevant job sheet produced on record as Ex.C-3. Perusal of Ex.C-3 reveals that the hand set in question was deposited by complainant with OP No.2, the service centre within warranty period. In Ex.C-3 itself it is mentioned that the reported problems are “distorted incoming audio|4410/distorted incoming audio|4410”. Remarks in Ex.C-3 recorded by concerned technician are “MIC and RECV Sound Distorted Changed But Same Issue”. So perusal of contents of job sheet Ex.C-3 establishes that actually hand set in question faced problem of distorted incoming audio within 6 months of its purchase. It is admitted in reply submitted by OP No.2 and 3 that mobile set is in custody of OP No.2. Though it is claimed that they after due repair of mobile set, sent intimation to the complainant for collecting the same, but no record produced to show about giving of said intimation. So much so that affidavit of the person, who gave such intimation is not submitted and nor the name of person or the phone number from which such intimation given, is mentioned anywhere in the reply. So allegations in this respect remains vague and general. Being so, those cannot be believed that mobile set in question has been repaired and same is ready for delivery since from 31.08.2016. If the mobile hand set remained ready for delivery with OP No.2 on 31.08.2016, then why the same not offered to be given to the complainant during proceedings of this complaint, qua that no explanation at all is offered. So in such circumstances contents of affidavit Ex.CW-1/1 of complainant are correct that actually the mobile set in question is having defects, which are not repairable and that is why same has not been returned by OP No.2 to complainant. Non return of the duly repaired mobile phone by OP No.2 to complainant for long period of two years approximately itself is a circumstance enough to establish that the mobile set in question retained by service centre i.e. OP No.2 for long period of more than two years for denuding the complainant of its use or non return of the same has taken place because of irreparable defect in the hand set. So in view of these circumstances, complaint deserves to be allowed against service centre (retainer of mobile set for 2 years) and the manufacturer because the warranty to be provided by service centre or manufacturer, as per endorsement on invoice Ex.C-1. As warranty is to be provided by respective manufacturer through service centre and as such liability of paying or refunding the price amount of Rs.5,300/- with interest remains of OP No.2 and 3 and not of the dealer (seller) namely OP No.1. As mobile set in question retained by OP No.2 service centre from 18.07.2016 for causing unnecessary harassment to complainant and as such complainant entitled to interest @ 7% per annum on the price amount of Rs.5,300/- w.e.f. 18.07.2016 till payment alongwith reasonable amount of compensation for mental agony and harassment as well as of litigation expenses. Complaint against OP No.1, the seller liable to be dismissed because warranty services not to be provided by him and moreover the fault remained with OP No.2, service centre in retaining the mobile set without any justification for more than two years.
6. As a sequel of above discussion, complaint against OP No.1 dismissed, but same allowed against OP No.2 and 3 with direction to them to refund price of mobile hand set namely Rs.5,300/- (Rs. Five Thousand Three Hundred only) with interest @ 7% per annum w.e.f. 18.07.2016 till payment. Compensation for mental agony and harassment of Rs.5,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against OP No.2 and 3, whose liability is held as joint and several. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order by OP No.2 and 3. Mobile hand set in question is lying with OP No.2 and the same will be treated as property of OP No.2 and 3. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
October 11, 2018.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
