DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.256 of 2017
Date of institution: 29.03.2017 Date of decision : 18.06.2019
Kusum Lata wife of Shri Pankaj Garg, resident of House No.563, Top Floor, Sector 65, Near Mohali Club, Mohali.
…….Complainant
Versus
1. Rocket Kommerce LLP, 4th Floor, Plot Nos.183 to 197 & 254 to 258, Bommasandra Jigani Link Road, Bommasandra Industrial Area, Bommasandra, Bangalore 562106 through its authorised representative.
2. Xiaomi Technology India Private Limited, 5th Flr, Delta Blk, Embassy Tech. Sq. Kadubeesanahalli Marathahalli, Sarjapur Outer Ring Rd., Bangalore through its authorised representative.
3. HCL Services Ltd., SCF 118, Phase 3B2, Mohali through its authorised representative.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Deepak Goyal, counsel for complainant.
Shri Atul Goyal, counsel for OP No.2
Name of OP No.1 deleted from the array of OPs vide order dated 28.05.2018.
OP No.3 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant placed an order with OP No.1 and 2 for purchase of mobile phone of model Redmi Note 3 Silver 32G alongwith insurance coverage. That order was placed online from house of complainant bearing No.563, Top Floor, Sector 65, Near Mohali Club, Mohali. Payment of Rs.12,374/- was made online from this place. Copy of invoice dated 22.06.2016 is enclosed with the complaint. Said mobile was delivered to complainant at the above referred residential address. 10 days after delivery of mobile, it started giving problems of overheating; of hanging; of non working of music player; of speaker voice etc. Operation of the said mobile was poor against the assurances given by OPs to the effect that mobile is of high class mobile having all the latest technologies. One year warranty on the mobile was provided from the date of purchase. When complainant after facing problems, approached OPs through emails dated 14.07.2016 and 31.07.2016, then OPs through email dated 31.07.2016 disclosed the complainant to perform factory reset through certain steps as mentioned in the email. Complainant followed those steps, but even then the mobile did not start working properly. Complainant approached OP No.3 for repairs of mobile on 07.12.2016 and displayed original invoice to OP No.3. OP No.3 kept original invoice with it and issued service order in favour of complainant. At the time of taking back delivery of repaired device in question, complainant made request to OP No.3 for return of his original bill, but OP No.3 refused to return the same by claiming that he has issued receipt/notice against the mobile and original bill is not required by complainant. Complainant after collecting mobile from OP No.3 used it for few days, but it did not work properly and as such he again approached OP No.3 vide service order dated 10.01.2017. Complainant after collecting mobile set from OP No.3 used the same for 2-3 days, but mobile again started giving same problems. Complainant claims that he is sure as if there is manufacturing defect which cannot be repaired and that is why this complaint for seeking direction to OPs to refund price amount of Rs.12,374/- with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.25,000/- more claimed.
2. Claim against OP No.1 given up by counsel for complainant by suffering statement in this regard on 28.05.2018 and accordingly name of OP No.1 was ordered to be deleted from the arrays of OPs vide order dated 28.05.2018. OP No. 3 is ex-parte in this case, but OP No.2 filed reply where through claiming that it is engaged in marketing sale and service inter alia of mobile phones in India under the brands “Mi” and “Xiaomi”. OP No.3 is authorised service centre of OP No.2. Complainant purchased mobile phone sold under Mi brand namely Redmi Note 3 Mobile for Rs.12,374/- through invoice dated 22.06.2016. That product was delivered to complainant. Mi and Xiaomi brand mobile phones are sold within India under standard warranty terms. On 07.12.2016, complainant approached OP No.3 with complaint regarding the product and on examination, it was found that the same was facing issues related to overheating and speaker of the product. Service engineer recorded due note in the job sheet in that respect. Defects related to overheating and speaker of the product were duly repaired by technician of OP No.3 and thereafter mobile was returned back to complainant without charging anything. On 10.01.2017 complainant again approached OP No.3 with similar issues and the service engineer duly recorded those issues in the job sheet. After examination and reviewing the product at the service centre, defects relating to overheating and receiver noise etc. were duly removed. Authorised service centre duly rendered services as aforesaid. Terms and conditions of warranty clauses are alleged to be as under:
“a. Within the warranty period Xiaomi shall provide free of charge repair and/or replacement services for defective parts.
b. The choice of repair and/or replacement is at the discretion of Xiaomi.
c. No other remedies (such as for example, refund) are provided for under the limited warranty.”
Complainant has not produced any evidence for proving alleged defects, relief/remedy cannot be granted without evidence. Through this complaint, a strategy is evolved by complainant for getting warranty extended by way of replacement for harassing OP No.2. Product after repair was delivered to complainant in proper working condition and as such there is no deficiency in service on part of OP No.2. In case there is any manufacturing defect, then that part can be replaced. As limited warranty on the product was granted regarding repair or replacement of the defective part and as such complainant not entitled to any other relief beyond those warranty terms. Other averments of the complaint denied.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and then her counsel closed evidence. On the other hand counsel for OP No.2 tendered in evidence affidavit Ex.OP-2/1 of Shri Sameer BS Rao, its authorised representative alongwith documents Ex.OP-2/2 to Ex.OP-2/6 and thereafter closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Copy of invoice Ex.C-1 establishes that complainant purchased mobile in question on 22.06.2016 by paying price of Rs.12,374/- and that fact has not been denied by OP No.2 in the written reply or in the submitted affidavit of its representative. There is no dispute regarding the fact that warranty of one year on this mobile is provided and sale effected by OP No.1 and 2. Being so, certainly complainant is consumer of OP No.1 and 2.
6. It is vehemently contended by counsel for OP No.2 that the mobile phone in question repaired twice within warranty period and there is no evidence of manufacturing defects and as such complaint being misconceived merits dismissal. Submission advanced by counsel for OP No.2 has not much substance because complainant even after removal of defects continued entering into correspondence through email for lodging protest against defects. Ex.C-1 = Ex.OP-2/2 is one and the same thing, whereas Ex.C-2 = Ex.OP-2/3 is one and the same thing. After going through Ex.C-2 = Ex.OP-2/3 and limited warranty statement Ex.OP-2/4, it is made out that warranty of one year on the product is given by OP No.1 and 2. Problems of overheating, hanging, improper working of music player etc. erupted and that is why complainant sent email Ex.C-3 dated 14.07.2016 first and thereafter Ex.C-4 on 31.07.2016. Complainant was assured by OP No.1 and 2 through email Ex.C-5 dated 31.07.2016 that the issues will be resolved to her satisfaction within next few days. Receipt of mobile phone took place at house of complainant on 02.07.2016 is a fact borne from Page-2 of Ex.C-5, but after 30 days of use of same, it started giving many problems of overheating etc. and that is why complainant claimed that she is not to use this device. This reply was sent on 16.02.2017 by complainant to OPs through email, copy of which is part of emails Ex.C-5. Before that complainant claimed through email of 31.07.2016 that problem is still persisting and as such it is a case in which complainant repeatedly lodged claim with OP No.1 and 2 regarding various problems of overheating etc. in the mobile in question.
7. Perusal of service order Ex.C-6 = Ex.OP-2/5 reveals that complainant claimed about defects of overheating of hand set or of non emitting of sound by speakers for the first time on 12.07.2016 and the same problems remained untill January, 2017
and that is why service order Ex.C-7 = Ex.OP-2/6 was prepared on 10.01.2017. Being so documentary evidence produced by both the parties on record establishes as if defects of overheating etc. in the mobile not removed even untill 10.01.2017, even though earlier the services were rendered in July, 2016 as referred above. Even on 10.01.2017 mobile was within warranty period because it was purchased through invoice Ex.C-1 dated 22.06.2016 and warranty was for one year. As problems of overheating or of mobile remaining in non calling state, or of non emission of sound by speakers persisted on 07.12.2016 and 10.01.2017, even as revealed by contents of Ex.C-6 and Ex.C-7 or Ex.OP-2/5 and Ex.OP-2/6 and as such it is obvious that defects virtually remained incurable. No one will purchase the mobile with persisting problems like one referred above. Even no one can lodge complains regarding same defects again and again, but despite that complainant has lodged complaints even after two repairs in July, 2016 and as such it is obvious that defects in the mobile have remained unremoved. Being so, complainant entitled for replacement of mobile set in question with same model or if same model not available, then with mobile set of equal worth. That replacement be provided by the seller or manufacturer i.e. OP No.1 and 2 and not by service centre i.e. OP No.3 and as such complaint against OP No.3 merits dismissal. Complaint against OP No.1 has already been withdrawn by counsel for complainant by suffering statement on 28.05.2018 and as such replacement to be provided by manufacturer i.e. OP No.2. Complainant also entitled to compensation for mental agony and harassment and to litigation expenses, but of reasonable amount by keeping in view the price of mobile and also keeping in view the fact that complainant could not use the mobile properly for more than 7 months after its purchase.
8. As a sequel of above discussion, complaint allowed against OP No. 2 only with direction to it to replace the mobile set in question with same model or if same model not available, then with mobile set of equal worth, within 30 days from the date of receipt of certified copy of the order. Complaint against OP No.3 is, however, dismissed. Compensation for mental agony and harassment of Rs.5,000/- and litigation expenses of Rs.5,000/- more allowed in favour of the complainant and against OP No.2. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. The complainant will be bound to deposit the defective mobile set with OP No.2 or with any other service centre as may be directed by OP No.2 within 15 days from of receipt of requisition from OP No. 2. Certified copies of the order be supplied to the parties free of cost as per rules. File be indexed and consigned to record room.
Announced
June 18, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
