One Plus Mobile Shop. The New KIDS WORLD. Neheru Market ComplexBhadrak, E-Mail:- newkidsworld@gmail.com . . . . . . Opp. Parties.
Counsel For Complainant : In person
Counsel For the O.P. No.1 & 2 : AnandaSankar Das, Advocate.
Counsel for the O.P. No. 3 : S.K. Nayak, Advocate & Associate.
Date of hearing : 27.12.2022.
Date of order : 10.01.2023.
SHRI SHIBA PRASAD MOHANTY, PRESIDENT.
In the matter of an application filed by the complainant alleging deficiency of service against the Opposite Parties under Consumer Protection Act, 2019.
Brief facts of the case is that, the Complainant is a Central Govt. Employee under Mecon Limited has purchased One Plue 9RT Cell Phone 5G (256/12), IMEI-869437054592914, Sl. No. ab864b7b77ed7e7 on 09.11.2022 from a Retail Shop named & styled as M/s New Kids World, Bhadrak. The phone was looking physically completely new & also performed well for 1st day operation with android11. Second day Android 12 update came & the complainant updated his phone. Then the battery performance reduced drastically. The complainant could not understand what to do & contacted the seller. They said it would be alright within a couple of days. Whereas the complainant was really in a regret that he has purchased a branded phone but was not able to use its beautiful features like screen animation, 120hz, display, face detection, live wall paper, any game installation & still he could not use such functions. Even for this he restricted to used, his phone gives maximum 3.5 to 4 hours from 100 to 0 % charge. RAM management is also very poor, with one or two applications used, RAM comes from 12.0GB to 5.0GB, that never goes more than 7.0GB ever. Display issue has also started with the time being. Sometimes the back button is not working, a very thin black line during any content delete & major issue is most of the time, a colorful screen (various dots of colors) coming when the phone makes power on or an application opens with finger print security. Sometimes phone automatically commands, Google voice assistant & the loud speaker gets off during a call on the speaker. Sometimes the back camera starts lagging once opened up. Almost all the time different necessary & trusted applications down load from google play store are automatically running in the back ground of the phone even though all applications are in restricted mode i.e. auto optimize mode. It is ultimately bothered him regarding the security of his bank accounts which are automatically opened in back ground. With fear, he has clearing his RAM in every 10 minutes only to overcome from these problems, still applications are opening automatically.Finger print sensor & camera are also not working properly. With a heavy heart & unbearable mental trauma he contacted One Plus Customer Executives (O.P. No.2) & let his phone to be checked by them but his suffering does not end there. The service center & customer executives suggested him to change the mother board of his phone which is a vital component of his phone which he does not want to change because it will hamper the main function of his new phone. Many a times he has contacted both One Plus via e-mail & their customer executives through phone & whatsApp but O.Ps did not take any heeds to his grievance. Hence he files this case seeking order of the Commission to refund his purchased amount with cost & compensation.
O.Ps resisted the claim & contested the case. O.Ps No. 1 & 2 file written version for allO.Ps. Facts disclosed by the O.Ps is that, the complainant has deliberately failed to bring up the point & wants to take undue advantage by now showing the clear facts. As per the information, the complainant has used the handset regularly for one month without any issues, and the complainant has raised the issue of battery draining after that the technician conducted a deep inspection and no defect in the handset or any issue with the battery. As such the complaint issued by complainant is untenable & is liable to be recalled against the O.Ps as it is not shown any manufacturing defect against the answering O.P. There is no record of the complainant lodging any grievance with the O.P. or visiting the service center of the O.P. on any other occasion. O.P. has never denied service to the complainant. O.P. is willing to officer its services to the complainant as & when required in accordance with warranty policy. There is no manufacturing defect, deficiency in service or unfair trade practice by the O.P. At this junction, the complainant has come up with a concocted story to harass the O.P. & ask for compensation from the O.P. It is safe to conclude that the complainant has concealed essential facts & has not approached this Hon’ble Commission with clean hands, hence the complaint needs to be dismissed with exemplary costs.
Notices were issued to O.Ps through E Mail & through Regd. Post. Though notices were duly served on O.Ps,O.Ps did not appear & files their written in time. As such O.Ps were set ex parte. Whenthe local dealer (O.P. No. 3) was informed to appear, O.P. No. 1 & 2 were compelled to file their written version. This case was heard on merit &after giving our thoughtful consideration to the rival contentions advanced by these partiesand the evidence on record, 3 issues cropped up which need to be answered to reach to the conclusion.
Issue No.1
Whether the handset has any inherent manufacturing defect as alleged by the complainant?
Issue No.2
Whether these Ops have committed any deficiency in service?
Issue No.3.
If so, then to what compensation the complainant is entitled to?
The complainant has purchased the handset on 09.08.2022. As it reveals from Annexure-1, the complainant has categorically reported about malfunctioning of Battery, RAM Management, Touch Sensitivity, Black line on deleting emails on 31.08.2022. He has also intimated about malfunctioning of certain features of the handset to the O.P. through email on 18.10.2022. As the phone has a warranty up to 08.11.2023 and the complainant has asked for replacement on 18.10.2022 & repeated his request on 21.10.2022 email. But case of the O.P. is that under their warranty policy, there must be manufacturing defect in the handset to claim replacement of the same. The complainant though averred in his complaint petition that the service centre and customer executive suggested him to change the mother board but there is no supporting documents/evidence to substantiate the fact. Further, there is no independent expert report about manufacturing defect of the handset. Without any such evidence, the Commission could not reach to the conclusion that there was any inherent manufacturing defect. So, Issue No.1 is answered in negative in favour of the complainant.
However, the complainant has promptly & specifically and thereafter repeatedly brought the malfunctioning of various features of the phone to the notice of the O.Ps but these O.Ps failed to solve the problem. However, they asked for the phone for a period of 15 days to which the complainant has rightly refused. Now in such advanced technology age, asking for the phone for 15 days is absurd and illogical. It is indirect harassment. Being convinced about the defectiveness of the set O.Ps took the same from the Complainant for its repairing. Therefore it can be said that the mobile set was not completely defect free. On the second occasion also the complainant has presented the set before O.Ps but no fruitful result was yield. The Ops nowherein their written version has stated that the complaint of non-functioning of the set was false. Such avoidance on behalf of the O.Ps proves that the mobile set suffers from defects and they have committed deliberate deficiency in service. So, issue no.2 is answered in favour of the complainant.
The complainant failed to prove through any independent expert evidence that the said phone has manufacturing defects. But, it is without any doubt that there was some persisting defects in the phone which may be rectifiable. Had the complainant not refused to hand over the phone to the OP No.1 & 2 for 15 days for further deeper investigation, then these Ops might have rectified the defects in the phone. But asking a phone for 15 days in the technologically advanced days is abnormal and suggests or hints towards indirect harassment. So, the commission is having no doubt that these OP No.1 & 2 have harassed the unfortunate complainant who has spent a hefty sum to purchase his phone. The complainant has no claim against O.P No.3, as such O.P No. 1 &2 are deficient in providing prompt and effective service to the complainant for which the complainant was forced to use a phone with defects.The complainant has used the phone without defect for some time & thereafter still using it. So, the answer to Issue No.3 is that the complaint should be allowed on a non-standard basis.Hence ordered.
O R D E R.
In the result, the complaint be and the same is allowed on contest against the O.P No.1 &2 with cost and compensation. O.P No. 1 & 2 are directed to pay 75% of the purchase price i.e. Rs. 32,999.25/- (Rupees thirty two thousand nine hundred ninety nine and twenty paisa) as cost of the mobile handset. Further the O.PNo. 1 & 2 are also directed to pay compensation of Rs.10, 000/- (Rupees ten thousand) towards harassment and mental agony. This order must be complied within 30 days from the date of receipt of order failing which additional 10% interest per annum shall be charged on the awarded amount from the date of order till the date of payment.
This order is pronounced in the open Court on this the 10th day of January 2023 under my hand and seal of the Commission.
