BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAITHAL.
Complaint No.285/17.
Date of instt.:27.10.2017.
Date of Decision: 08.10.2018.
Ravi Ahuja @ Ravi s/o Shri Madan Lal, r/o House No.114/1, Ward No.12, Mohalla Kharadian, Kaithal.
……….Complainant.
Versus
- Oppo Mobile India Pvt. Ltd., F-16, Okhla Industrial Area, Phase-I, New Delhi-110020.
- Balaji Mobile Shop, Ambala Road, Kaithal.
- Pace Tel System Pvt. Ltd., 18A/10, Ground Floor, Chotu Ram Chowk, Dhand Road, Kaithal through its ASP/Authorized person.
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Shri Rajbir Singh, Presiding Member.
Ms. Suman Rana, Member.
Present: Shri Prem Chhabra, Advocate for complainant.
Shri Kuldeep Dhull, Advocate for the OPs.
ORDER
(RAJBIR SINGH, PRESIDING MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile bearing Model No.OPPO F-15 IMEI No.863497037580937 from OP No.2 for a sum of Rs.19,000/- vide Bill No.13 dt. 13.2.2017. It is further alleged that the said mobile set is manufactured by the OP No.1 and OP No.3 is the authorized service centre of OPs No.1 & 2. It is further alleged that the said mobile was assured with a guarantee/warrantee for one year for any manufacturing defect and also for providing service/repair of it free of cost for one year. It is further alleged that the said mobile was defected due to manufacturing defect and for removing the defect, the mobile was given to service centre of OP No.3 on 18.9.17, 23.9.17 & 26.9.17 but the OPs did not rectify the fault. It is further alleged that the OP No.2 cheated him and given a used phone, its fact also came to his knowledge at the time of repairer give a job card on dt. 26.9.2017 in which purchased date mentioned as 30.1.2017. It is further alleged that he requested many times to the OPs to remove the defects of the said mobile but they are not paid any heed to his genuine requests. This way, the OPs are deficient in service. Hence, this complaint is filed.
2. Upon notice, OPs appeared before this forum and filed the reply submitting therein that the complaint is not maintainable against the answering OPs, as the complainant is not the consumer of OPs; that the answering Ops have removed the defect from the mobile in question; that the complainant has not availed the efficacious remedy available in the terms & conditions of the warranty card; that the complainant has no locus standi to file the present complaint against the answering OPs; that the complainant has no cause of action against the answering Ops; that the complainant did not come in the Court with clean hands and he is guilty of suppression of true & material facts from this Court; that the answering OPs has not sold any mobile hand set to the complainant, so the complainant is not entitled for any relief from this Forum. On merits, it is submitted that the complainant visited the service centre of OP No.3 on 18.9.2017 and Software up grade hand set OK, call closed by Miss Lalita on 18.9.2017 and after examination of mobile set and found that there is no problem in the set; that the complainant download the third party application through Shareit and in the Shareit, there is option of every mobile set in the clear data and after downloading the third party application through Shareit; that the complainant intentionally click the clear data option and after that, the third party data was deleted from the mobile; that there is no manufacturing defect in the mobile set; that the complainant visited the service centre of OP No.3 on 18.9.17 and software upgrade handset OK, call closed by Miss Lalita on 18.9.17, 23.9.17 and 26.9.17; that no malfunction has been deleted handset OK, call by Miss Lalita; that there is no negligence on the part of the OPs. The rest of the contents of the complaint are denied and so, prayed for dismissal of complaint.
3. In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A; documents Ex.C1 & Mark CA to Mark CD and closed evidence on 27.4.18. On the other hand, the OPs tendered in evidence affidavit Ex.RW1/A and documents Ex.R1 to Ex.R3 and closed evidence on 29.8.18.
4. We have heard ld. counsel for both the parties and perused the case file carefully and minutely and have also gone through the evidence led by the parties.
5. From the pleadings and evidence of the case, it is clear that the complainant purchased a mobile bearing Model No.OPPO F-15 IMEI No.863497037580937 from OP No.2 for a sum of Rs.19,000/- vide Bill No.13 dt. 13.2.2017 Ex.C-1.
6. It is argued by the ld. counsel for the complainant that the mobile set in question was defected due to manufacturing defect and for removing the defect, the mobile was given to service centre of OP No.3 on 18.9.2017, 23.9.2017 & 26.9.2017 vide job sheets Mark CA to Mark CC respectively. But the OPs did not rectify the fault. He further argued that the OP No.2 cheated him by giving a used phone and this fact came to his knowledge when the repairer gave a job card on dt. 26.9.2017 in which the purchase date of mobile in question was mentioned as 30.1.2017.
7. On the other hand, the OPs contended that the complainant visited the service centre of OP No.3 on 18.9.2017 and its Software upgraded and handset was OK and call closed by Miss Lalita on 18.09.2017. He further contended that the complainant downloaded the third party application through Share it and in the Share it, there is option of every mobile set in the clear data and after downloading the third party application through Share it, the complainant intentionally click the clear data option and after that, the third party data was deleted from the mobile and there is no manufacturing defect in the mobile set. He further argued that the job sheets produced by the complainant as well as by the OPs Mark CA to Mark CC/Ex.R1 to Ex.R3 respectively does not belong to the mobile in question; rather the same belongs to the other mobile set purchased by the complainant from the OPs. The OPs produced copy of job sheets dt. 19.3.2017 and 27.6.2018 at the stage of arguments on the case file. Perusal of these job sheets, it is found that the IMEI No.863497037580937 mentioned on these job sheets are the same IMEI which is mentioned on the original bill Ex.C-1 produced by the complainant. Perusal of job sheets earlier produced by the complainant as well as OPs as Mark CA to Mark CC/ Ex.R1 to Ex.R3 also shows that the IMEI number is mentioned there as 863497037580093 and date of purchase is mentioned as 30.1.2017 and the same are not matching with the IMEI number and date of purchase mentioned on the bill Ex.C1 which means that job sheets Mark CA to Mark CC/ Ex.R1 to Ex.R3 produced by both the parties, does not belongs to the mobile in question.
8. Ld. counsel for the OPs argued that as per newly filed job sheets, the complainant approached the OPs on 18.3.2017 and on 27.6.2017 with some grievances in the mobile set in question and on checking the mobile set, the OPs found that the software needs to be upgraded and the OPs upgraded the software of the mobile in question. Perusal of these job sheets shows that the OPs upgraded the software and mentioned in its Repair Remarks as “Software Upgrade Handset OK Call Close by Mr. Sumit”. On the other hand, the complainant alleged that the mobile in question was having manufacturing defect. But it is pertinent to mention here that the complainant failed to produce any expert/engineer report in this regard on the case file, vide which, it can be proved that the mobile in question was having any manufacturing defect. It is pertinent to mention here that mere allegations are not sufficient, those are necessary to be proved by cogent evidence. But here in this case, the complainant failed to produce any cogent evidence vide which, it can be proved that the mobile in question was having any manufacturing defect. On the other hand, the Ops produced copy of job sheets, vide which, they upgrade the software of the mobile in question and handset was OK. Hence, in view of the facts and circumstances of the case, we are of the considered view that the complainant has failed to prove any deficiency on the part of OPs.
9. Thus, as a sequel of above discussion, we find no merit in the complaint and we hereby dismiss the same. No order as to costs. A copy of this order be sent to both the parties free of costs. File be consigned to the record room after due compliance.
Announced.
Dt.08.10.2018.
(Suman Rana). (Rajbir Singh)
Member. Presiding Member.
Present: Shri Prem Chhabra, Advocate for complainant.
Shri Kuldeep Dhull, Advocate for the OPs.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even date, the present complaint is dismissed. File be consigned to record-room after due compliance.
Dated:08.10.2018. Member Presiding Member.
