BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint No.: 190 of 2017
Date of Institution: 10.08.2017
Date of order: 24.07.2018.
Jatin Garg son of Shri Satpal Garg, resident of 33-B, Aggarwal Colony, Fatehabad, Tehsil and District Fatehabad.
….. Complainant.
Versus
- R.K. Stickers & Mobile Shop, Shop No. 14, Palika Bazar, Fatehabad, Tehsil and District Fatehabad through its Proprietor/Authorized Signatory.
- Oppo Care Point, Opposite Durga Mobile, G.T. Road, Fatehabad, Tehsil and District Fatehabad through its ASM.
- Oppo Mobiles (NR) Private Limited, JMD Megapalis Sixth Floor, Unit No. 651-655, Sohna Road, Sector-48, Gurgaon through its Managing Director.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act
Before: Sh.Raghbir Singh, President.
Sh. M.K. Khurana, Member.
Present: Sh.Suresh Parocha, counsel for the complainant.
Sh.RR Mehta, counsel for the OPs no. 2 & 3.
OP no. 1 already exparte.
ORDER:
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties with the averments that he purchased a mobile handset make Oppo-AI601 FIS of the value of Rs. 19,000/- vide cash memo no. 6327 from the shop of OP no. 1 on 19.4.2017. It is also submitted that OP no. 3 is manufacturer of the abovesaid mobile handset and OP no. 1 is authorized dealer of OP no. 3 and OP no. 2 is service care centre of OP no. 3. It is further submitted that OP no. 1 at the time of sale of the above handset gave a warranty of one year and assured that if there is any fault in the mobile handset within the warranty period in that eventuality the mobile handset will be replaced or original cost of the handset will be refunded. Therefore, the complainant is consumer of the OPs as defined in the Consumer Protection Act, 1986.
2. It is further submitted that from the very beginning the abovesaid mobile handset was not working properly and in this regard the complainant made a complaint to OP no. 1. The OP no. 1 replied to wait for some-time and asked the complainant that the handset in question will work properly but all in vain. Thereafter, on the asking of OP no. 1 the complainant got the mobile checked up from OP no. 2 on 24.5.2017 i.e. the service care centre of OP no. 3 and submitted the mobile for its solution. Thereafter, when the complainant again visited OP no. 2 for collection of the handset then OP no. 2 declined to repair the handset on the ground that the mobile handset in question had already opened and as such the same is out of warranty, whereas the mobile of the complainant was opened only in presence of the authorized engineer of OP no. 2. Thereafter, in this regard the complainant sent an electronic message through Gmail to OP no. 3, who also replied that the mobile handset in question had already been opened by any non OPPO Service Centre, so the same has become out of warranty.
3. It is further submitted that thereafter the complainant visited OPs many a times but all in vain. The complainant also requested OPs several times to admit the claim of the complainant and either to replace the handset in question or refund the original cost of the same. However, nothing was done by the OPs. The abovesaid act on the part of OPs amounts to deficiency in rendering service to the complainant. It is further prayed by the complainant that the OPs may be directed for making a payment of Rs. 19,000/- to the complainant along-with a sum of Rs. 50,000/- as compensation. Hence, the present complaint.
4. On being served OPs no. 2 & 3 appeared through their counsel and resisted the complaint by filing a joint written statement wherein various preliminary objections with regard to maintainability, locus standi etc. have been raised.
5. In reply on merits, it is submitted that at the time of sale of the handset in question the same was tested and was found OK. It is further submitted that the answering OPs never agreed to replace the mobile or to repay the full amount in any event. Rather the warranty of one year was for repair of the device in accordance with the terms and conditions of the warranty. It is further submitted that as per terms and conditions of the warranty all man-made damages are out of free warranty, but a repair can be still implemented at the cost of the purchaser. It is further submitted that as per Clause (c) of terms and conditions of the warranty disassemble repair, modify the device by yourself without company’s permission or repair the device in other service centre not authorized by the OPs is not covered under the warranty.
6. It is further submitted that the complainant approached to OP no. 2 & 3 for solution of the complaint and on inspection of the device it was found by OP no. 2 that the device was opened by some non OPPO Centre. As such the damage was not covered under the abovesaid terms and conditions of warranty. It is further submitted that there is no deficiency on the part of answering OPs in rendering service to the complainant and terms and conditions of the warranty has not been violated by the answering OPs. Therefore, the complainant is not entitled for refund of the original cost of the device or replacement of the same and the compensation as sought by him vide the present complaint. The OP no. 2 & 3 have further prayed for dismissal of the present complaint being devoid of any merits.
7. Despite proper notice the OP no. 1 did not appear before this Forum and as such he was proceeded exparte on 30.3.2018.
8. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Annexure CW1/A and the documents as Annexure C-1 and C-2 and closed the evidence of the complainant. On the other hand, Sh. Kanwar Kumar, Service Centre Engineer tendered his affidavit as Exhibit OPW1/A in support of the case of the OP no. 2 and 3. The OPs also tendered in evidence the documents as Annexure R-1 to Annexure R-7 and closed the evidence.
9. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record of the present case. It is the case of the complainant that since the OPs have failed to repair the handset in question as such he is entitled for refund of the original cost of mobile handset along-with compensation and litigation charges.
10. It is a settled proposition of law that original cost of any equipment, product or machinery can only be refunded to the purchaser/complainant in case there is inherent manufacturing defect in the said product. Therefore, in the present case the prime question for decision before this Forum is as to whether the mobile handset in question was having any inherent manufacturing defect or not. As per settled proposition of law the onus was upon the complainant to prove that the mobile handset in question was suffering from manufacturing defect. However, the complainant has not produced any cogent, convincing and credible evidence supported by opinion of the mobile engineer/expert to prove that the mobile handset in question was suffering from manufacturing defect. In our opinion the report of mobile engineer or expert is essential to enable this Forum to arrive at a conclusion as to whether the defects crept in the handset are manufacturing defects or not.
In case titled as Jose Philip Mampillil Vs. Premier Automobiles Ltd. & Anr. (cited as 2001(1) CPJ Page 9 (SC) and Marti Udhyog Ltd. Vs. Susheel Kumar Gasajofra 2006 (2) CPJ Page 3 (SC) the Hon’ble Apex Court laid down that the manufacturer could not be ordered to replace the car or refund its price merely because some defect, appear which would be rectified or defective parts could be replaced under warranty. Similar principal of law was laid down in Chandeshawar Kumar Vs. Tata Engineering Loco Motive Comp. Ltd. 2007 (1) CPJ Page 2, M/s E.I.D. Parry (India) Ltd. Vs. Baby Bangamen Thushava 1 (1992) CPJ 279 (N.C) a case decided by four member bench of National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd. Vs. Dr. Binrender Narayan Parsad 2010 (111) 130 (NC).
11. In view of the legal position as explained above, we are of the considered opinion that the complainant is not entitled for refund of the original cost or replacement of the mobile handset in question.
12. The other issue involved in the present case for decision of this Forum is as to whether the complainant is entitled for repair of the handset in question, free of cost. As per Clause (c) of Section 1 of warranty instructions and conditions, disassemble, repair, modify the device without company’s permission or repair the device in other service centre not authorized by the company is not covered under the warranty. In the present case, from perusal of Annexure R-1, it is evident that the handset in question was tempered. The engineer of service centre of the OPs namely Kanwar Kumar also tendered an affidavit wherein it has been deposed by the engineer that the mobile handset in question was checked by him and the same was found tempered and was opened in some non Oppo Centre. The complainant has not submitted any evidence or document to rebut Annexure R-1 and affidavit of the engineer of the service care centre. Therefore, we are of the considered opinion that the mobile handset in question was not covered under the warranty and as such the complainant was not entitled to repair the same, free of cost.
13. In view of the aforesaid discussion, we are of the considered opinion that the complainant has failed to prove any deficiency on the part of OPs in rendering service to him. The present complaint is accordingly dismissed with no order as to costs. Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.
Announced in open Forum. Dated:24.07.2018
(Raghbir Singh)
President
(M.K.Khurana) Distt. Consumer Dispute
member Redressal Forum, Fatehabad.
