Delhi

North East

CC/313/2017

Smt. Nisha Sharma - Complainant(s)

Versus

Pacetel System Pvt. Ltd. & Ors. - Opp.Party(s)

16 Oct 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 313/17

 

In the matter of:

 

	Smt. Nisha Sharma W/o Shri Devender Kumar Sharma R/o:- 460/3C/1D, Main Pandav Road BholaNath Nagar, Shahdara East Delhi, Delhi-110032	Complainant
	Versus
1       2           3         4	Pacetel System Pvt. Ltd. At D-13/1 Model Town-III Delhi-110009   M/s Jain Mobile Store 500/2F, Gali no. 6, 60 Foota Road Near ChintpurniMandir Vishwas Nagar, Shahdard Delhi-110032   OPPO Mobiles India Pvt. Ltd. 5th Floor, Tower B, Building no. 8 DLF Cyber City Gurugram-122002, Haryana   Optiemus Electronics Ltd. Regd. Office: K-20, Second Floor, Lajpat Nagar-II, New Delhi-110024	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

27.10.2017 16.10.2020 16.10.2020

 

 

Mr. Arun Kumar Arya, President(Addl. Charge)

Ms. Sonica Mehrotra, Member

ORDER

Mr. Arun Kumar Arya, President (Addl. Charge)

 

1. Case of the complainant essayed in the present complaint is that she had purchased a mobile phone of make OPPO model A37fIN manufactured by OP3 & OP4 from OP2 on 29.10.2016 for a sum of Rs. 11,000/- inclusive of VAT vide bill no. 482. The said mobile phone carried a warranty of one year. However, itstarted giving functional problem of getting hung within one month of its purchase for which when the complainant visited OP2, she was told that there was software issue on updation of which the mobile phone shall work properly. The complainant did so but the subject mobile phone worked properly for few months only and in the month of February 2017, the subject mobile phone started giving heating and hanging problem and on advice of OP2, complainant approached OP1, Authorized Service Center (ASC)of OP3 and OP4 i.e. the manufacturer of the subject mobile phone and apprised OP1 of the problem faced by her and the representative of OP1 addressed the software problem in the subject mobile phone and assured the complainant of its smooth functioning. But the subject mobile phone stop working again in September 2017 with defect in its on-off key / button and was getting heated up and hung again apart from other issues. The complainant took the mobile phone to OP1 whose official rectified the problem and assured the complainant that the subject mobile phone would work fine. But yet again and lastly in the month of October 2017, the problems in the handset again resurfaced and on visit to OP1 on 25.10.2017, the complainant was asked by its representative to submit the subject mobile phone for checking ad that the same would be returned in the evening of the same day. The complainant handed over the subject mobile phone and while collecting the same in the evening of 25.10.2017, he was told by the representative of OP1 that there shall be no problem with the subject handset but to the utter dismay of the complainant, on reaching her house, the subject mobile phone started getting heated again and this time when the complainant complained about the same to the official of OP1, they misbehaved with her and refused to repair the mobile phone despite the same being under warranty and ignored the repeated request of the complainant to either repair or replace the same. Therefore as last resort the complainant was compelled to file the present complaint alleging unfair trade practice on the part of OPs which has caused mental and physical agony to the complainant and prayed for issuance directionagainst the OP to either replace the subject mobile handset or refund the value thereof i.e. Rs. 11000/- alongwith compensation of Rs. 25000/- towards mental agony and harassment and Rs. 11000/- towards cost of litigation.
2. Complainant has attached copy of purchase invoice and copy of jobsheet dated 25.10.2017.
3. Notice was issued to the OPs on 02.11.2017. OP2 entered appearance and filed its written statement vide which while admitting the factum of the sale of the subject mobile phone to the complainant, it took the preliminary objection that the warranty of the subject mobile phone was that of OP3 & OP4 (manufacturer) and not of OP2.  On merits OP2 resisted the complaint on grounds that whenever the complainant visited OP2, she was always advised to approach OP1, OP3 & OP4 (service center and manufacturer) for redressal of her problem with the handset as they were solely liable to address this issue of defect and OP2 was a mere seller of the subject mobile phone and had no responsibility for any alleged defects in the goods sold by it which was also mentioned in the retail invoice and therefore cannot be liable for any alleged mental or physical agony. For the defence so taken OP2 prayed for dismissal / rejection of the complaint.
4. Rejoinder in rebuttal to the defence taken by OP2 was filed by complainant vide which she submitted that all opposite parties were jointly and severally liable for warranty issue of the subject mobile phone.
5. On fresh address of OP3 & OP4 filed by the complainant, notice was issued to them and OP4 entered appearance and filed its authority letter authorizing its office executive to appear in defend OP4 in the present complaint.
6. OP1 & OP3 entered appearance as joint entity and filed a joint written statement vide which they took the preliminary objection of the present complaint being pressure and harassment tactics in gross abuse of process of law by the complainant for her unreasonable and mischievous demand. On merits, while admitting the factum of the complainant having visited OP1 on 25.10.2017 with complaint of heating and hanging problem in the subject handset and advice of software updation given by its service engineer, denied the complainant had ever visited the OP1 in either February 2017 or September 2017 as alleged by the complainant regarding any defects in the mobile handset. OP1 & OP3 urged that on 25.10.2017, the service engineer of OP1 examined the handset and kept it under observation for the entire day and night as per the standard testing procedure and found no heating or hanging issue in the subject mobile handset which was then duly returned to the complainant the next day i.e. 26.10.2017 after recording the observations on the jobsheet. OP1 & OP3 denied having been ever approached thereafter by the complainant or any request / communication written or oral from the complainant regarding any issue with the handset. OP1 & OP3 denied having misbehaved with her and urged that the complaint being false, frivolous and wrong filed with intent to obtain unjust monetary gain was liable to be dismissed.
7. Rejoinder in rebuttal to the defence taken by OP1 & OP3 was filed by the complainant vide which she submitted that big company like OP3 have adopted the tactics of no issuing jobsheet to customer who approach them for repair of the mobile phones which why no jobsheets were issued by OP3 either in February 2017 or September 2017 when the software was updated and mobile was returned to the complainant.
8. None appeared on behalf of OP4 after its first appearance made on 09.03.2018 and was therefore proceeded against ex-parte vide order dated 10.07.2018.
9. Evidence by way of affidavit was filed by the complainant exhibiting document relied upon as Ex CW1/A to CW1/C.
10. Evidence by way of affidavit was file by OP1 & 3 through AR exhibiting the status sheet of service of mobile handset dated 25.10.2017 acknowledging the return of the subject handset to the complainant on 26.10.2017 as Exhibit RA-1. OP1 & OP3 deposed that after carefully listening to the complainant’s grievance, its service engineer examined the handset and found that its software was at a lower version and therefore updated the same to the latest version and kept the mobile phone for overnight observation and the complainant has failed to provide any contrary evidence to prove any defect in the mobile handset in evidence filed by her. OP1 filed a separate affidavit too submitting that the complainant had not visited it either in February 2017 or September 2017 and therefore no job sheet was created during the said period and it was only  25.10.2017 when she visited OP1 was the job sheet createdat 13:58:45 hrs. and after examination of the subject mobile phone, the work order was closed with repair remarks “no any problem found in checking phone in night and morning no heat, no hand, all is ok (now in phone S/W version is low) (now updated) handover” with the subjectmobile phone having being handed over to the complainant on 26.10.2017 at 13:12.:50 hrs.
11. None appeared on behalf of OP2 after filed its written statement on 08.01.2018 and was therefore proceeded against ex-parte vide order dated 29.08.2018.
12. Written arguments were filed by the complainant and OP1 & OP3 in reassertion of their respective grievance / defence. On direction issued to the complainant in hearing held on 09.04.2019 to establish relationship between OP3 & OP4, the complainant alongwith OP3 submitted that certain parts of the subject mobile phone were assembled by OP4 for Indian market and therefore both OP3 & OP4 had business relation with each other. The complainant was directed to place on record proof of her visit to OP1 in February 2017 and / or September 2017 and to also produce the subject mobile phone alongwith its original packing box in compliance of which, the complainant produce the subject mobile phone with cover in hearing held on 09.09.2019 and filed copy of printouts of screen shots of her visit to OP1 on 07.09.2017 and 13.09.2017 with accompanying affidavit u/s 65B of Indian Evidence Act.
13. We have heard the rival contentions of complainant as well as OP1 & OP3 through video conferencing and shall duly consider the defence taken by OP2 as well in view of the settle law passed by Hon'ble National Commission in Bank of India VsN V Deoras 1997 (3) CPR 63 (NC) that even if OP is absent, commission / Forum must consider averments in version before passing orders, therefore the pleadings of OP2 shall be taken into consideration while passing orders.
14. Undisputedly the subject mobile was manufactured by OP3 &OP4 was sold by OP2 to the complainant on 29.10.2016 which has been admitted by all parties. The dispute arose when the subject mobile phone started giving functional defects of heating and hanging as alleged by the complainant after its purchase while it was still under warranty for which it had to be repeatedly taken to OP1, ASC of OP3 between September 2017 to October 2017. The jobsheet dated 25.10.2017relied upon by the complainant and not disputed by OP1 & OP3 shows the subject mobile phone as being under warranty with problem description of “heating” as per customer (complainant) herein. The status sheet of service filed / relied upon by OP1 & OP3 shows that the defects of heating was reported by the complainant on 25.10.2017 and work order / job sheet no. INDL00620171025R5733 was issued / prepared by OP1 with remark “hanging problem network and low sound for receiver 1 day testing” with ELS status OK and no hanging or heating problem diagnosed in the subject handset. The said analysis report has gone un-rebutted / unchallenged by the complainant and infact on the very next day i.e 27.10.2017 the present complaint has been filed. After due appreciation of the complaint and documentaryevidence placed on record by all sides, we are of the considered opinion that the complainant had failed to establish any manufacturing defect in the subject mobile phone which as per documents functioned for 11 months after purchase without any defect establish on record as even the complainant has also filed screen shots of her visit to OP1 for the month of September 2017 and October 2017 even otherwise not denied which shows that the subject mobile phone kept under observation for close to 24 hrs and the work order status was closed as no defect found / software upgraded and mobile handset delivered back to the complainant. This very fact refutes all allegations of any manufacturing defect in the subject handset and therefore does not merit either refund or replacement thereof. However, it cannot be denied the subject mobile phone was still under warranty when it was submitted on 25.10.2017. We therefore direct the complainant to take the subject handset for repair to OP1 & OP3 and OP1 & OP3 shall repair the subject mobile handset free of cost to the satisfaction of the complainant within 30 days of receipt of copy of this order and also provide extended warranty of three months on the subject handset after repairs. No directions or adverse inference drawn against OP2 which was the seller of the subject mobile phone since the grievance primarily centers around OP1 & OP3, ASC and manufacturer of the subject mobile phone.
15.  Let a copy of this order be sent to each party free of cost as per Regulation 21 (1) of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on  16.10.2020

 

(ArunKumar Arya) President(Addl. Charge)

(Sonica Mehrotra) Member