Punjab

Faridkot

CC/19/294

Urmila Devi - Complainant(s)

Versus

R.K. Electronics Point - Opp.Party(s)

Ashu Mittal

28 Apr 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT

C.C. No. :               294 of 2019

Date of Institution:   19.12.2019

Date of Decision :     28.04.2022

 

Urmila Devi aged about 61 years,  wife of Madan Lal Jindal son of  Chaudhary Ram r/o Qr. No. 110 (B), Near Lal Kothi, Faridkot, Tehsil and District Faridkot.

                                               .......Complainant

Versus

1. R. K. Electronic Point, 29, Baba Farid Market, Near Talwandi Chowk, Faridkot  through proprietor.
2. Unitech Care Centre, Shop No. 92, Baba Farid Market, Near Kotwali, Faridkot, Tehsil and District Faridkot through its Incharge.
3. Nokia India Pvt Ltd, 4 F, Tower A &B, Cybergreen, DLF Cyber City, Sector 25 A, Gurgaon (Haryana)-122002 through its MD.

                     .......Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

(Now, Section 35 of the Consumer Protection Act, 2019)

 

Quorum:     Smt Param Pal Kaur, Member.

                     Sh Vishav Kant Garg, Member.

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Present:      Sh Ashu Mittal, Ld Counsel for complainant,    

                  Sh Amandeep Singh Virdi, Ld Counsel for OP-3,

                    OP-1 and OP-2 Exparte.

 

(ORDER) 

( Param Pal Kaur, Member)

                                        Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to replace the defective mobile with new one or to refund its cost price and for further directing OPs to pay Rs.10,000/-as compensation for harassment and mental tension suffered by complainant alongwith litigation expenses.

2                                       Briefly stated, the case of the complainant is that in April, 2019 on assurance of OP-1 that Nokia handset of is of superior quality, complainant purchased one double sim mobile handset make Nokia from OP-1 and paid Rs.4,700/-in cash. OP-1 issued bill no.45 dated 15.04.2019 and gave warranty for one year and also assured for free services in case of any problem, but just after few days of purchase, said mobile phone started giving trouble to complainant as it used to get hanged. Complainant immediately approached OP-

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1 and brought this fact into notice, but Op-1 told that this problem of hanging would cease automatically after some days, but said problem persisted continuously. In October, 2019, complainant again approached OP-1 and reported the problem, who sent him to OP-2. Complainant brought this fact in to the notice of OP-2 who after checking kept the said mobile phone with him and asked him to visit after seven days and after  seven days, when complainant approached to take back her hand set, OP-2 put her off saying said handset has been sent to Bathinda Customer Care. After about ten days, complainant rang up customer care centre, Bathinda from where she was told that her mobile phone has been sent back to OP-2, but OP-2 kept putting her off saying mobile in question is with Customer Care Centre, Bathinda. Complainant approached OPs several times with request to hand over her mobile set after repair, but all in vain. This act of OPs amounts to deficiency in service and trade mal practice on the part of OPs and has caused harassment and mental tension to complainant. Complainant has prayed for directing OPs to replace the said mobile phone and to pay compensation of Rs.10,000/- for harassment and mental agony suffered by her besides litigation expenses. Hence, the present complaint.

 

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3                                         Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 06.01.2020, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                 On receipt of the notice, OP-1 submitted his written version taking preliminary objections that complainant has not come to this Forum with clean hands and has concealed material facts. He has falsely dragged the answering OP in present litigation and therefore, complaint is liable to be dismissed. However, on merits, OP-1 has denied all the allegations of complainant being wrong and incorrect and asserted that he sold the said mobile to complainant in sealed condition after purchase. Complainant checked the said mobile handset, which was running properly and after full satisfaction, complainant took the same and at that time, there was no defect in said mobile. It is averred that complainant never approached them regarding any defect in said handset and moreover, as per allegations of complainant, there is some manufacturing defect, which can not be corrected by answering OP. It is further averred that mobile phone in question is not in possession of OP-1 and therefore, answering OP is not liable for any defect or for any harassment

 

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caused to her, rather complainant has falsely implicated him in present case.  He has prayed for dismissal of complaint with costs.

5                                          OP-2 also filed reply wherein averred that defect in said mobile has been removed by Bathinda Care Centre. Now, it is defect free and is lying in the office of answering OP, but complainant has refused to receive the same on the ground that he wants to change the old mobile set with new one. After repairs, it is lying with them, but complainant has not come to their shop to receive the same. There is no deficiency in service on the part of answering OP and prayed for dismissal of case with costs.

6                                       OP-3 appeared through counsel for filed written statement taking preliminary objections that all the allegations levelled by complainant are false and fabricated and asserted that mobile in question does not have any manufacturing defect and allegation of hanging of mobile is completely false. Complainant is not entitled for relief sought as there is no manufacturing defect in said mobile phone. It is averred that as per warranty document, if  handset is not  working, then as per warranty documents, customer can approach the authorized service centre for availing the after sale

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services. In present case, complainant approached Authorized Service Centre/OP-2 in October, 2019 for the first after six months of purchase of said mobile and issue relating to hanging of mobile handset was completely resolved by OP-2. Complainant was duly informed about this and was asked to collect the same, but she did not approach the authorized service centre /OP-2 to get her mobile, rather demanded to replace the said mobile or to refund its cost. It is further averred that defect in said mobile handset occurred as a result of negligent handling by complainant and not due to manufacturing defect and conditions for exercising warranty strictly exclude any kind of liquid damage, physical damage or any act beyond the reasonable control of manufacturer. These damages will not be repaired under warranty and it is pertinent to mention that alleged problem in handset is not due to any manufacturing defect, rather it is a failure on the part of complainant to protect the device from damage or misuse. Said defect occurred due to improper usage and mishandling by complainant and now he is trying to mislead the by levelling false allegations. On merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated the same pleadings as taken in preliminary objections and asserted that alleged defect has been

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rectified by OP-2 and he was duly informed to collect his handset, but he insisted for replacement of handset with new one or alternatively for the refund of cost of handset. Defect of hanging occurred due to negligence or mishandling by complainant. It is not a manufacturing defect and it can occur again in case of mishandling or misuse of handset by complainant. Hanging issue has been  fully resolved and now it is functioning properly. Allegations levelled by complainant are false and fabricated. Complainant is not entitled for relief sought and there is no deficiency in service on their part. Prayer for dismissal of complaint with costs is made.

7                                             Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence affidavit of complainant as Ex C-1 and documents Ex C-2 and 3 and then, closed the evidence.

8                                                        Though sufficient opportunities were granted to OP-1 and 2 to conclude their evident, but they neither appeared in this commission nor tendered their evidence. Therefore, vide order dated

 

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14.12.2021, OP-1 and OP-2 were proceeded against exparte. Ld counsel for OP-3 tendered in evidence affidavit of Varun Menon Legal Counsel for HMD Mobile India Pvt Ltd as Ex OP-3/1 and closed the same on behalf of OP-3.

9                                        We have heard the arguments advanced by learned counsel for complainant as well as OP-3 and have carefully gone through and perused the affidavits & documents placed on record by respective parties.

10                                       It is observed that case of the complainant is that complainant purchased mobile hand set in question from OPs and during the period of warranty it used to give problem of hanging. On advise of OP-1, complainant gave her mobile set to OP-2 for repair, but OP-2 did not return the same on the pretext that it is sent to Service Centre at Bathinda. Complainant made calls at Bathinda service centre, from where she was told that they have sent the mobile set back to OP-2, but on asking OP-2 regarding her mobile set, complainant was again told that her mobile is again sent to service centre, Bathinda and OP-2 has been  putting her off on one pretext or the other. Ops have caused huge harassment to complainant. She has prayed for accepting the present complaint. On the contrary, OP-1 has denied all the allegations levelled

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by complainant being wrong and incorrect. On the other hand stand taken by OP-2 and OP-3 is that their service centre provided services to complainant and informed her to collect the handset as the defect pointed out by her was rectified, but she intentionally refused to take the handset and demanded the replacement of handset or refund of cost of same. Complainant herself refused to take her mobile and filed the complaint before this Commission.

11                                      From the careful perusal of evidence and record placed on file, it is observed that grievance of complainant is that she purchased a mobile phone from OP-1 against proper bill, but said phone had some inherent defect and despite repeated requests made by complainant before OPs, OPs did not repair the same up to her satisfaction. To prove her case, complainant has placed on record copy of bill Ex C-2 and has reiterated his pleadings through her affidavit  Ex C-1. She was continuously facing problem of hanging while using the mobile handset due to some manufacturing defect. Ex C-2, copy of bill in the name of complainant proves that complainant is the consumer of OPs. Ex C-3 is copy of job sheet that proves the pleadings of complainant that her mobile set purchased from OPs, which was under warranty period and was giving trouble of hanging and she handed over her set to service centre for

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repair on 12.10.2019. It shows that mobile handset of complainant was not free from defects. From the careful perusal of record, it can not be said that mobile in question was totally free from defects and it is wrong that it did not give any problem to its user. Complainant has adduced sufficient evidence to prove her case and Ex C-2 to 3 are cogent documents, authenticity of which can not be ignored. It is the sole responsibility of Company to supply thoroughly checked, defect free mobile phones to its customers. Moreover, plea taken by OP-2 and 3 that mobile in question is defect free, it has been rectified but complainant did not come up to collect the same, has no legs to stand upon in view of our observation that had OP-2 or 3 willing to provide defect fee mobile in question to complainant, they would have made any effort to handover the same to complainant during the proceedings of present complainant, but  they never come forward with any offer to supply the said mobile to complainant. They did not make any single offer or any attempt to amicably resolve the matter.

12                                                In the light of above discussion and keeping in view the aforesaid facts and circumstances of the case, we are fully convinced with the pleadings and evidence led by complainant and therefore, complaint in hand is hereby allowed against OP-2 and 3. OP-1 is mere a retailer and

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guarantee, warrantee and liability for providing safe, defect free handsets and for providing effective services lies only with OP-2 and 3. Therefore, complaint against OP-1 stands hereby dismissed. OP-2 and 3 are directed to replace the mobile phone in question with new one of same model. They are further directed to pay Rs.2000/-to complainant for harassment and mental agony suffered by her. Compliance of this order be made be made jointly and severally by OP-2 and 3 within one month from the date of receipt of the copy of this order, failing which complainant shall be entitled to initiate proceedings under Section 71 and 72 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Commission

Dated :28.04.2022

(Vishav Kant Garg)       (Param Pal Kaur)                        

Member                          Member