Judgment & Order dt. 22.03.2017
Refusal by OP No.2 i.e. M/s. Labonya Infotech, the authorized service provider of Micromax Mobile Company (OP No. 3) to make proper repair or replacement of the mobile handset bearing Model No. “Q426” and IMEI No.911495306380395, purchased by the petitioner / complainant, has virtually set the cat among the pigeons galvanizing the complainant to file the instant case alleging deficiency in service against the OP No. 2.
Fact of the case leading to the filing of the instant case may be epitomized as follows:
Factual metrix :
September 12, 2016. This day, the complainant purchased one Micromax mobile phone from OP No. 1 for a price of Rs.7,000/-. The mobile handset carried a warranty over a period of 12 months. It functioned properly; but it was for too short a period. No sooner had a month expired from the date of purchase, the mobile set started to cause disturbance in its functioning. Battery back up failed; and it got inflated; the back up of the battery suddenly plummeted without any information and warning to an alarming low level and the mobile handset suddenly used to get switched off. The phone, thereafter, became completely dead.
The complainant found no other alternative open but to rush to the seller i.e. OP No. 1 who instructed him to visit their authorized service provider i.e. OP No. 2 for solution. Then and then, he i.e. the complainant approached OP No. 2
on 14.10.2016; OP No. 2 checked the mobile handset and gave it understand to the complainant that the problem lies with the battery which is a non-removable one and that the said battery cannot be replaced by him. He further gave out to the complainant that it is OP No. 3 i.e. the company itself which can replace such battery. Thereafter, the complainant has sent e-mail on several dates i.e. on 15.10.2016, 17.10.2016 and 18.10.2016 to OP No. 3, detailing his problem. OP No. 3 gave reply but did not suggest any solution. The complainant has also knocked at the door of OP No. 2 several times, but to no effect. All requests of the complainant and all his attempts to get his mobile handset repaired have fallen on the deaf ears of OP No. 2. So, the complainant has filed the instant case against the OPs claiming the replacement or refund of price of the mobile handset and also for compensation of Rs.50,000/- for mental pain and harassment. Hence, this case.
Defence Version:
OP No. 1 & 3 have not turned up to contest the case even after service of notice upon them. So, the case is heard ex-parte against them. It is OP No. 2 who has made appearance in this case and has also filed a written statement to contest, wherein it is contended inter-alia that the case is not maintainable in its present form and in law, that there is no cause of action against OP No. 2, that the case suffers from mis-joinder and non-joinder of the necessary parties and that the case is, therefore, liable to be dismissed in limini with cost.
The positive case as made out by OP No. 2 is that he has no authority to make any replacement of battery, which is an undetached one and that it is no one, but the company (OP No. 3) itself which can remove such battery with a new battery of the same kind. It is further averred in written statement that the complainant should have filed a petition u/s 13, CP Act, 1986, praying for expert examination of the mobile handset in question in order to ascertain whether there is any manufacturing defect or not. But as no such petition has been filed by the complainant before the Forum, the case deserves to be dismissed and should be dismissed with cost.
Upon the averment of both the parties the following issues are formulated for consideration herein:
Issues:
- Is the case maintainable in its present form and in law?
- Is there any manufacturing defect in the mobile handset of the complainant?
- Are the OPs particularly OP No. 2 guilty of deficiency in service?
- Is the complainant entitled to get relief as prayed for and if so, to what extent?
Evidence of the Parties:
The complainant has filed an affidavit-in-chief and he has also been cross examined in the witness box as PW-1. The documents admitted in evidence on his behalf are marked as Ext. Nos. 1, 2, and 3 series as detailed in the list of documents kept in the record. On the other hand, the OP No. 2 has also got himself examined as OPW-1. One technical bulletin of the battery has been filed on his behalf and the same is marked as Ext. A.
DECISION WITH REASONS
Issue No.1:
This issue has not figured at all in the submission canvassed on behalf of the OP No. 2. On perusal of the complaint and materials on record, it is found that the case is quite maintainable in its present form and in law. Hence, this issue goes primarily answered in favour of the complainant.
Issue No.2:
Now, we have to see whether there is any manufacturing defect in the battery attached to the mobile handset in question. It is in the evidence of the complainant (PW-1) that he used the mobile handset for about a month, no matter whether a day less or not. He purchased the mobile handset on 12.9.1016 from OP No. 1 for Rs.7,000/-, as goes his evidence. The mobile handset developed a snag for which he rushed to OP No. 2 i.e. authorized service provider of the company on 14.10.2016. These facts go undisputed and it is established by these facts that the mobile handset functioned smoothly, i.e. without any kind of disturbance till the date before 14.10.2016. It is not the case of the complainant that the set created disturbance immediately after its purchase i.e. from day one. It functioned smoothly and properly for over a certain period without any kind of hazards. The complainant did not see any kind of disturbance in functioning of the mobile handset during this period. Had there been any inherent defect in the mobile handset, it would have shown disturbance in its functioning from day one. But this is not the case with the mobile handset in question and regard being had to this aspect of the matter, we make no scruple to say that there is no manufacturing defect in the mobile handset in question.
Further, OP No. 2 is an authorized service provider of the company i.e. OP No. 3. He does not say in confirmed manner that there is any manufacturing defect in the mobile handset. Being an authorized technician of the company and being a man having requisite expertise in the line, he could have made it clear before the Forum in emphatic manner that the defect in the mobile handset is manufacturing defect. He deposes that there may be manufacturing defect present in the set. This version of the OP No. 2 coupled with the circumstances as discussed above goes to clear but one thing and one thing only that there is no manufacturing defect in the mobile handset in question and therefore, the mobile handset in question should not be subjected to expert examination u/s 13 of the CP Act, 1986. Hence, this issue also goes answered in favour of the complainant.
Issue No.3 & 4 :
It is to be seen now whether the OP No. 2 is guilty of deficiency in service. It is contended on behalf of OP No. 2 that the OP No. 2 is not authorized to rectify the battery as the battery is non-removable one. According to him, this type of battery can be repaired only by the company. It is further contended on behalf of OP No. 2 that the warranty covering for the battery is only for 6 months. Ld. Lawyer appearing for the complainant has submitted that the battery is tightly attached with the mobile handset and as such it is integral part of the mobile handset. The warranty cover is extended for 12 months for the mobile handset and 6 months for the accessories of the set. The defect which has developed in the battery is within the period of warranty and therefore the OP No. 2 being the authorized service provider of OP No. 3, is under obligation to make repair / replace of the battery of the mobile handset. But the OP No. 2 has negligently denied to render service to the complainant, having taken an escaping pretence that he is not authorized to remove undetachable battery of the mobile handset. This is; according to him, deficiency in service, and therefore the complainant being a consumer is entitled to get relief as prayed for.
OP No. 1 is the seller who sold the mobile handset to the complainant; OP No. 2 is authorized service provider of the company and OP No. 3 is the company itself. There is a warranty and warranty covers a period of 12 months or 6 months as the case may be. In the instant case, the defective mobile was brought to OP No. 2 about a month after its purchase from OP No. 1. All these facts go undisputed and unerringly lead to conclusion that the defective mobile handset in question was brought to OP No. 2 for service within the warranty period, be it 12 months or 6 months. OP No. 2 has raised a one-point contention to the effect that he is not authorized to repair / replace the mobile handset or faulty parts thereof in as much as the battery attached to mobile handset is a non-removable one. According to the submission of OP No. 2, it can only be removed by the company itself or by him when the company so permits him to do so. Let’s go through the provisions of statement of warranty included in the User Guide, which is marked as Ext.‘2’. Clause 3, 5 & 6 thereof appear to be pertinent for consideration in this case.
Clause 3 goes thus:
“3. For the entire warranty period, Micromax or its authorized service center / personnel will, at their discretion, without any charges and subject to Clause 6, repair or replace a defective product. Repair or replacement may involve the use of same or equivalent / conditioned unit. Micromax will return the repaired handset or can replace with another same or equivalent handset to the consumer in full working condition. All replaced faulty parts or components will become property of Micromax.”
“5. For any handset repaired or replaced during the warranty period, the repaired or replaced handset shall continue to be within the warranty period for the remaining time of the original warranty period of original handset”.
Clause 6 of the statement of warranty lays down the circumstances under which the warranty will not be applicable.
These inter alia are : -
1: when the IMEI No. or warranty seal removed, erased, defaced or altered.
2: Usage other than in accordance with the user manual, rough handling, ingression of any liquid, exposure to moisture, dampness, or extreme temperature etc.
3: The seals of battery casing or cells are broken or show evidence of tempering or the battery is used in equipment other than those for which it is specified in user manual.
The warranty will not be applicable, if the circumstances mentioned under clause 6 and as referred to above exist. The burden of proof that such circumstances do exist lies upon the OP No.2 and he will have to discharge this burden with cogent evidence. On perusal of the record and also evidence of OP No. 2 it is evident that there is no iota of evidence much less any cogent evidence to proof any of the circumstances mentioned under clause 6. What is seen is that the OP No. 2 has given some passing remarks to the effect that the battery is likely to be damaged due to over charge and misuse. Nowhere in the statement of warranty is mentioned – what is meant by “over charge”. That apart, there is no mention in the warranty clause that the warranty will be destroyed if the battery is damaged due to over charge or that over charging may destroy the battery of the mobile handset. OP No. 2 is hammering time and again that the battery may be damaged due to misuse. The term “misuse” is vague one and the OP should clarify with positive evidence how the mobile handset was misused by the complainant. In absence of any positive evidence as to over charge or misuse, whatever it may be, we are of the opinion that the OP No. 2 has not been able to discharge the burden of proof and therefore, regard being had to these facts and circumstances; we hold that the warranty of the complainant was fully applicable when the mobile handset was produced before OP No. 2 for repair or replace.
OP No. 2 has been submitting ad nauseum that he is not authorized to replace the battery from the mobile handset in question, as it is a non-removable one. This version of OP No. 2 does never get any support from the provisions of statement of warranty.
Clause 3 of warranty statement clearly gives out in the very first line thereof that the Micromax or its authorized service centre will repair or replace the defective product subject to clause 6 as referred to above. Clause 3 authorizes OP No. 3 to repair or replace the mobile handset or to replace any faulty parts thereof. The faulty parts will become property of Micromax. There is no mention in warranty statement that the battery which is a non-removable one cannot be replaced by the authorized service provider. The authorized service provider i.e. OP No. 2 is also allowed even to replace the mobile handset if it is so to do by him. Ext.2 i.e. warranty statement, thus, never goes to help OP No. 2. Even the documents filed by the OP No. 2 does not extend any support to OP No. 2’s contention that he is not authorized to repair / replace the faulty battery from the mobile handset. One technical bulletin of the battery is filed on behalf of OP No. 2 and it is marked as Ext. A. There is also guidelines to some extent and this guideline also makes it clear that the swollen battery can be removed or detached from the mobile handset. Regard being had to all the evidences on the record, we cannot but say that the OP No. 2 has resorted to misrepresentation in order to evade the duty relegated to him by the company. This is sheer negligence on the part of OP No. 2 which has resulted in deficiency in service. The complainant is the sufferer. He purchased a new mobile handset at the cost of Rs.7,000/- with a high hope that he will avail himself of the modern facilities of contact with his near and dear ones and others, various entertainment, network facilities and other privileges of day to day life. But so unfortunate he is, he has been deprived of all these facilities. He has run with his face seamed with care and anxiety to the threshold of OP No. 2 several times for getting service to his mobile handset. But the OP No. 2 has driven him out. The complainant has also taken pain to inform the mobile company i.e. OP No. 3 of the problems he was facing with his mobile handset but no fruitful solution was meted out to the complainant by the said company. No one heard to his cries and this turned into a cry in the wilderness. The predicament of the complainant can be easily understood by everyone in the given circumstances and as a natural corollary of these circumstances, he i.e. the complainant has fallen a victim to physical harassment and mental agony, which are nothing but the tributes to sheer negligence, insincerity and stubbornness of none but OP No.2 alone. OP No. 1 and 3 are not to blame for unsavoury situation created to the complainant and that’s why they are not liable to complainant and this being so, OP No.2 alone is liable to compensate the complainant for such harassment and agony. Hence, these two issues are answered accordingly in favour of the complainant. In the result, the case succeeds in part.
Hence,
O R D E R E D
that the complaint case be and the same is allowed on contest in part against the OP No. 2 with cost and dismissed ex-parte against the OP No. 1 & 3 without costs.
OP No. 2 is directed to take back the mobile set with its accessories from the Forum and to do necessary repairs / replacements of its parts without any cost in order to put the mobile set in full working condition with respect to all its available facilities after having replaced its battery by a new one of same kind free from all defects and thereafter, to return the same to the complainant within a month of the receipt of the order.
He is further directed to pay compensation amounting to Rs.2,000/- for harassment and mental agony caused to the complainant by denial of service within the warranty period. Cost of litigation is quantified to be Rs.2,000/-. He is also directed to make payment of such cost as well as compensation to the complainant within a month of receipt of this order, failing which the complainant is at liberty to execute the order of the Forum and in that case the OP No.2 will have to bear interest @ 15% p.a. upon the compensation amount from the date of receipt of this order till the date of full realization.
Let a free copy of this order be supplied or sent free of cost to the parties concerned.
