DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088
CC No: 176/2016
D.No.________________ Dated: ________________
IN THE MATTER OF:
DEEPIKA GUPTA W/o SH. KAPIL KUMAR GUPTA,
R/o A-40-G, VIJETA VIHAR APARTMENTS,
(DELHI POLICE SOCIETY), SECTOR-13,
ROHINI, NEW DELHI-110085. … COMPLAINANT
Versus
1. WS RETAIL SERVICES PVT. LTD.,
OZONE MANAY TECH PARK, No. 56/18, ‘B’ BLOCK,
9th FLOOR, GARVEBHAVIPALYA, HOSUR ROAD,
BANGALORE-560068, KARNATAKA, INDIA.
2. MOTOROLA MOBILITY INDIA (CELL PHONE STORE ),
12th FLOOR, TOWER D, DLF CYBER GREEN,
DLF PHASE-III, U-6 ROAD, SECTOR-24,
GURGAON, HARYANA-122002.
3. MAX MOBILE CARE,
SHOP No. 56-57, AGGARWAL CITY MALL,
PITAM PURA, NORTH DELHI-110036. … OPPOSITE PARTY(IES)
CORAM :SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 25.01.2016
Date of decision: 06.09.2017
MS. USHA KHANNA, MEMBER
ORDER
1. The complainant has filed the present complaint against the OP under the Consumer Protection Act, 1986 thereby alleging that
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complainant purchased one Motorola mobile handset model No Moto G Second Generation bearing IMEI No. 866376028745369 & 866376028745377 on 12.01.2015 vide retail invoice no. #BLR_WFLD20150600132718 of Rs.13,548/- from OP-1 through Flipkart.com. The complainant further alleged that after sometime the complainant found some defects in the mobile handset, the complainant called the Flipkart customer Care Executive who advised the complainant to hard reset the device and when the complainant tried to hard reset the device, the mobile handset started functioning well. After couple of months the mobile handset again developed same issues and the complainant again hard reset the mobile handset but the issue persisted and the device became highly unstable and the battery back-up of the mobile handset also reduced and the complainant sent e-mail to OP regarding the issues of the mobile handset who advised the complainant to visit the nearest service centre to get the mobile handset inspected and repaired. On 23.05.2015, the complainant submitted the mobile handset to OP-3 and OP-3 gave a job sheet no. AMSDEH001127 and the complainant was told to collect the mobile handset on 25.05.2015. On 25.05.2015, the complainant collected the mobile handset and inserted both SIMS to the SIM trays but the complainant found the mobile handset was not recognizing any of the SIMS. On 26.05.2015 the complainant again visited the service
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centre and told them about not recognizing the SIMS but they told the complainant that the complainant had herself damaged the SIMS and the complainant sent e-mail to OP-1 & OP-2 about the whole issues. On 05.06.2015, OP-1 through Flipkart.com replaced the complainant’s mobile handset but that mobile handset was having several problems, its screen became unresponsive and the mobile handset was rendered useless. The complainant further alleged that the complainant again sent e-mail to OP-1 as well as OP-2 about the whole story and requested them to refund the full amount spent on the purchase of the mobile handset.
2. On these allegations the complainant has filed the complaint and prayed for direction to OP to pay to the complainant Rs.13,548/- (the amount spent by the purchaser on the mobile handset) alongwith Rs.5,000/- as compensation for mental & physical harassment.
3. OP-1 has been contesting the case of the complaint and filed reply and submitted that there is no privity of complaint between OP-1 and the complainant as OP-1 is only a seller on the website and sells products of other manufacturers, traders etc. under their respective Trade Marks through the website and the warrantee/guarantee and after sale service are the liability of the manufacturer or its service centre. OP-1 further submitted that as a goodwill gesture, the product was replaced even after 5 months
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though OP-1 provides 30 days replacement warrantee to its customers from the date of purchase. sOP-2 & OP-3 have been proceeded ex-parte vide order dated 12.05.2016 as none on their behalf appeared despite service of notice as per track report.
4. Complainant filed rejoinder and denied the version of the OP-1 and submitted that the complainant has read the manual carefully before using the handset and has handled the mobile as per guidelines mentioned in the manual.
5. In order to prove her case the complainant filed her affidavit in evidence and also filed written arguments. The complainant also placed on record copy of retail invoice dated 12.01.2015 for purchase of mobile set for total value of Rs.12,849/-, copy of service note dated 23.05.2015 and copies of e-mails dated 31.05.2015, 01.06.2015, 09.08.2015, 10.08.2015, 11.08.2015 & 12.08.2015 sent to OP.
6. On the other hand on behalf of OP-1 Ms. Swati Singh, Authorized Signatory filed her affidavit in evidence and denied the case of the complainant. OP-1 has also filed written arguments.
7. This forum has considered the case of the complainant in the light of evidence of both the parties and documents placed on record by the parties. During arguments Ld. Counsel for OP-1 relied on following case laws: -
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i) (2000) 10 SCC 654 in case entitled Hindustan Motors Ltd. &Anr. Vs N. Siva Kumar & Anr.
“In the above case law it has been held by Hon’ble Supreme Court that a dealer cannot be held liable for the manufacturing defect in the product”
8. Though OP-1 on the complaint of the complainant had replaced the defective mobile handset after 4 months of its purchase with another defective mobile handset. It shows that there is a manufacturing and inherent defect in the mobile handset and the manufacturer is liable to replace the mobile handset which the manufacturer i.e. OP-2 has not replaced and this act of OP-2 amounts to unfair trade practice & deficiency in service. Accordingly, the OP-2 is held guilty of unfair trade practice and deficiency in service.
9. Accordingly, OP-2isdirected as under: -
i) To refund to the complainant an amount of Rs.12,849/- being the invoice value of mobile phone set on return of the mobile phone by the complainant.
ii) To pay to the complainant an amount of Rs.10,000/- as compensation towards mental agony and harassment which includes litigation expenses.
10. The above amount shall be paid by OP-2 to the complainant within 30 days from the date receiving this order failing which OP-2 shall
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be liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving this order till the date of payment. The complainant will return old handset/mobile, original job-sheet with all accessories to the OP-2 if not delivered earlier. If OP-2 fails to comply with the order within 30 days from the receiving of this order, of the return of mobile phone etc., the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 6th September, 2017.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
