DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 22 OF 2018
DATE OF FILING:22.2.2018 DATE OF JUDGEMENT: 24.7.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : Sri Parimal Dolai, son of Jogendra Nath Dolai of Village and P.O Bhuban Nagar, P.S Kakdwip, Pin-743347, Dist. South 24-Parganas.
O.P/O.Ps : 1. Reliance My Jio Store, Reliance DX Mini, Village-Rathtala, P.S & P.O Kakdwip, Pin-743347, South 24-Parganas.
2. Kalyan Bose, Regional Service Manager (East), Godraj Waterside, 1st Floor, Tower no.II, Plot no.5, Block-DP, Sector-V, Salt Lake Electronics Complex, Salt Lake City, Kolkata-91.
3. Malay Ghosh , Senior Service Manager, Kakdwip Jio Store ( Reliance Digital Life), Reliance My Jio Store, Reliance DX Mini, Village-Rathtala, P.S & P.O Kakdwip, Pin-743347, South 24-Parganas.
4. Amal Das, Service Manager of Kakdwip Jio Store, Village & P.O Pukurberia,P.S -Kakdwip, Pin-743347, South 24-Parganas.
5. Reliance Retail Limited, represented by the Chairman, 3rd floor, Court House, Lokmanya Tilak Marg. Dhobi Talao, Mumbai-400 002.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
Complainant purchased a Reliance LYF Earth -1(White) Mobile ,having IMEI no. 868818020149288/868818020549289 from O.P-1 on 1.8.2016 for Rs.19,131/- . The warranty period was till 1.8.2016 as the normal warranty period was extended for two years. Since the date of purchase, the mobile hand set developed many problems, such as mobile got hanged, touch screen not properly working and mobile set got abnormally heated after charging. So, the mobile set was taken to O.P nos. 3 and 4 by the complainant. O.P-3 and 4 repaired it and handed over it to the complainant on 3.8.2016. About a month thereafter, the same problem again developed and the mobile set stopped functioning. It was again taken to O.p nos. 3 and 4. They retained the same for about 15 days and thereafter detected the problem as being one of “Liquid damage”. They charged a lot of money from the complainant for repair of the same. Complainant did not pay the charge as the defect arose within the validity period of warranty service. Complainant demanded replacement of the mobile set by a new one. But no effect was given to the request of the complainant by the O.Ps and, therefore, the complainant has filed the instant case, praying for refund of the consideration money and payment of compensation etc.
O.P nos. 1 to 4 have filed written version, wherein it is contended inter alia that the O.Ps are collectively represented by authorized signatory of O.P-5. They admit the sale of the mobile set to complainant with warranty service. According to them, complainant deposited the mobile set on 27.11.2017 for repair during the warranty period . They found that there was a ‘Liquid damage’, which is not covered by the warranty agreement and, therefore, they asked the complainant to pay Rs.1180/-only for repair charge . But the complainant refused to pay the said amount and did never come back to take back the mobile set from them. They have sent letter on 23.2.2018 to the complainant, asking him to take back the mobile set from them. But, no response has been obtained from the complainant. As the warranty has become void due to above damage caused by the complainant, complainant is not entitled to free service of the mobile in terms of the warranty Agreement. There is no deficiency in service on their part and the case should, therefore, be dismissed in limini with cost.
The O.P-5 made appearance in the case ,but has not filed written version to contest herein. Therefore, the case precedes exparte against him.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service for not repairing or replacing the mobile set of the complainant?
- Is the complainant entitled to get relief or reliefs, if any, as prayed for?
EVIDENCE OF THE PARTIES
Complainant has filed evidence on affidavit ,which is kept in the record. Similarly, O.P nos. 1 to 4 have also filed evidence on affidavit and the same is kept in the record. BNA filed by the O.Ps is also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is admitted fact that the mobile set was sold to the complainant by the O.P-1. It is also admitted fact that there is a defect in the mobile set which was sold to the complainant. According to the submission of the O.Ps, the mobile set was deposited with them by the complainant on 27.11.2017 vide copy of job sheet dated 27.11.2017 kept in the record. So, from these, it stands established that there is a defect in the mobile set of the complainant and for that defect, the mobile set did not work.
Now, it is the version of the O.Ps that there is a damage caused by access of liquid to the mobile – which is technically called by them as ‘Liquid damage’ and, therefore, the warranty agreement has become void in terms of the said agreement. It is true that the warranty agreement will be void ,if three is any damage caused by flood or liquid etc. and that is provided in the warranty agreement of the company i.e O.P-5. But before declaring the warranty void, the company will have to establish by cogent evidence that the damage was caused by none but the complainant. When the defect in the mobile set stands established by the complainant , the initial burden shifts to the O.P company and it is the O.P company which will have to prove by cogent evidence that the defect was caused by the complainant and, therefore, the agreement of warranty service has become void.
In the instant case, no such evidence has been led by the O.P company to prove that the liquid entered into the mobile set and, therefore, the mobile set got completely damaged. A copy of job sheet dated 27.11.2017 , Annexure B-1 to written version, is filed on record by the O.Ps. But this Annexure can never prove that there was liquid damage in the mobile. It is the mechanic who examined the mobile set, can prove that there was access of liquid to the mobile set and, therefore, the mobile set was damaged. Evidence of the mechanic is the best evidence and in absence of best evidence, an adverse presumption can be drawn against the O.P. There is no explanation of the O.P as to why the best evidence has been withheld from producing before the Forum. In absence of such best evidence, we however feel compelled to draw an adverse inference against the O.Ps to the effect that there was no liquid damage in the mobile set of the complainant and that the O.Ps have taken a subterfuge to evade their liability under the warranty agreement made between the parties.
It is not fact that the mobile set of the complainant developed defect only on a single day for which it was taken to the O.Ps on 27.11.2017. According to the evidence of the complainant, the mobile set developed defect since the very date of its purchase and it went out of service time and again and the same was taken to the O.Ps also time and again by the complainant. It is further stated by the complainant in his evidence that on one occasion only the job sheet was issued to the complainant by the O.Ps and in other occasions no job sheet was issued by the O.Ps to him. To prove it, the complainant has relied upon an entry on the reverse page of his purchase receipt made by the O.Ps. This endorsement is made by the O.P-1 on 15.11.2017 and the endorsement reads thus, “Received for repair Hand Set LYF Earth -1, white RCKNPKP10014929 on 15.11.2017”. The endorsement has remained unchallenged and unrebutted. Does this endorsement not prove that the mobile set was taken to the O.Ps for repair on 15.11.2017also? The endorsement does prove it that the mobile set was taken to the O.Ps for repair on 15.11.2017. Having placed reliance upon this very endorsement of the O.Ps, we cannot disbelieve the evidence of the complainant to the effect that the mobile set of him has been developing defect since the very date of purchase. There is certainly manufacturing defect and such defect can well be presumed from the fact that the mobile set has been developing snag one after another from the very date of purchase of it.
The O.Ps have greatly relied upon the job sheet dated 27.11.2017. But, the contents of this job sheet also appear to be very much doubtful to us. Towards the end portion of this job sheet there is a column , “Received the repaired product” and within that column is written “Product is in satisfactory working condition” and below this writing is the signature of the complainant dated 27.11.2017. What do all these writings mean? All these writings mean and mean only that the product was received by the complainant on 27.11.2017 in satisfactory working condition. But the fact remains otherwise. It is the version of both the complainant and the O.Ps that the complainant did never return to the O.Ps to take back the mobile set after repairing. The writing of job sheet just above, appear to be not in commensurate with the actual state of affairs which go undisputed. So, regards being had to this aspect we do feel constrained to say that the reliance cannot be placed upon this job sheet and this job sheet has also been manipulated by the O.Ps for the purpose of avoiding their liability towards the complainant.
The complainant has been able to prove by evidence that the mobile set has developed defect time and again since the date of purchase and, therefore, he has prayed for replacement of the mobile set by a new one. We are of the opinion that there is sum and substance in the grievance of the complainant and the complainant is entitled to replacement of his mobile set by a new one of same kind. Bypassing their duty to repair or replacement of the mobile set by the O.Ps during the validity period of warranty service is deficiency in service on their part and the complainant is entitled to get remedy which is granted as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos.1 to 4 and decreed exparte against O.P-5 with a cost of Rs.10,000/- against all O.Ps.
All the O.Ps are directed to replace the old mobile set of the complainant by a new one of similar kind which will be free from defect, within a month of this order, failing which, the O.Ps will refund the entire consideration money i.e Rs.19,131/- to the complainant with an amount of compensation of Rs.10,000/- for causing harassment and mental agony to the complainant.
If the refund amount, compensation amount and the cost amount are not paid within a month thereafter, all these amounts will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
