Punjab

Faridkot

CC/16/100

Jaswinder Pal - Complainant(s)

Versus

Singla Communication Service Centre - Opp.Party(s)

Tulsi Dass

07 Nov 2016

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :        100       

Date of Institution :   18.04.2016

Date of Decision :     7.11.2016

Jaswinder Pal aged about 36 years s/o Sh Sant Ram r/o Chopra Bagh Street No.10, Kotkapura Tehsil Kotkapura District Faridkot.                                                                    

.....Complainant

Versus

1. Singla Communication Service Centre, LAVA Mobile Company, Kotkapura Tehsil Kotkapura, District Faridkot through its Authorized Signatory.

2. Friends Telecom, Mobile Repairing & Software, Opp.Co-operative Bank Moga Road, Panjgrain Kalan, Tehsil Kotkapura, District Faridkot through its Authorized Signatory.

3. LAVA Mobile Company, through its M.D., Head Office A-56, Sector 64, Noida – UP 201301, Phone No.0120-4637100.

 ........OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh Purshotam Singla, Member.

 

Present: Sh Tulsi Dass, Ld Counsel for Complainant,

              Sh Vipan Tayal, Ld Counsel for OP-1,

              Sh M S Sodhi, Ld Counsel for OP-3,

              OP-2 Exparte.

(Ajit Aggarwal, President)

                                          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 and for further directing OPs to pay Rs 50,000/-as compensation for harassment and mental tension suffered by complainant alongwith Rs.20,000/- as litigation expenses.

   2                        Briefly stated, the case of the complainant is that complainant purchased one new LAVA XI Mobile hand set for Rs 7000/- on 15.04.2015 from OP-2 vide bill no. 449. It is contended that said mobile phone started giving problems just after 7-8 months of its purchase as it had some inbuilt defect. Complainant brought this fact to the notice of OP-1 and  OP-2, who asked him to hand over the said mobile phone to OP-1 and in December, 2015, complainant handed over the said phone to OP-1 and in turn OP-1 issued service job sheet having assessment of hardware problem. After some days, when complainant approached OP-1 to get back his mobile phone, he found that OP-1 had changed its display from white to black and when complainant asked him about this fact, OP-1 told complainant to go to OP-2. Complainant approached OP-2 and asked about the change in colour of display, then OP-2 assured him that as there is some manufacturing defect in his mobile and therefore, they would change the same. After some days, said mobile created a new problem of heating and its display stopped working properly. On this, complainant again approached OP-1 and 2 and disclosed the whole problem to them, but they did not listen anything, rather misbehaved with him and used rude language towards him in the presence of other customers due to which complainant underwent mental tension and agony and it caused him great harassment. Repeated requests made by complainant for replacement of mobile bore no fruit. 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.50,000/- for harassment and mental agony suffered by him besides Rs.20,000/- as litigation expenses. Hence, the present complaint.

3                         Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.04.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                        On receipt of the notice, the OP-1 filed reply taking preliminary objections that complaint is liable to be dismissed as it is filed on false and vague allegations. It is asserted that complaint is not maintainable as OP-1 is only a Service Centre that works under OP-3 and provides services as per terms and conditions of OP-3. Complaint filed by complainant is without any technical report and without any expert opinion and it fails to mention that what kind of manufacturing defect is there in the said handset. Moreover, complainant has not come to the Forum with clean hands and has concealed the material facts. It is asserted that in connivance with OP-2, complainant got issued the bill after 2-3 months of activation to make it come under the warranty period and therefore, present complaint is liable to be dismissed. No cause of action arises against OP-1 as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b. Physical damage, c. Serial no. Missing, d. tampering, e. Mishandling/burnt. It is submitted that mobile of complainant barred by warranty period and thus, complaint filed by him is liable to be dismissed.  It is asserted that complainant approached OP-1 on 22.09.2015 with battery problem and he was told by answering OP that battery back up depends upon its usage as in android system, there are many application and these applications drain the battery and after being satisfied, complainant took his mobile back. Complainant again approached OP-1 on 15.01.2016 with blank display problem and engineers of Company after thoroughly checking the phone, changed the display of mobile with the consent of complaint and did not charge anything from him. Thereafter, in the month of April/2016, complainant again visited answering OP and when answering OP checked the handset, it was found to be out of warranty. However, on merits, OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are false and fabricated and no financial loss or inconvenience is caused to him. He has prayed for dismissal of complainant.

5                      OP-3 also filed reply taking preliminary objections that complaint in hand is not maintainable as it is without any technical report and complainant has not come to the Forum with clean hands and has also concealed the material facts. It is asserted that complainant has no locus standi to file the present case and it is only the greed of mind. No cause of action arises against answering OP as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b.Physical damage, c.Serial no.Missing, d. tampering, e. Mishandling/burnt. It is submitted that complainant never complained regarding performance of the mobile and OP-2 is still ready to repair the mobile phone and thus, there is no deficiency in service on the part of OP-3 complaint filed by him is liable to be dismissed.  It is asserted that complainant approached answering OP on 22.09.2015 with battery problem and he was told by answering OP that battery back up depends upon its usage as in android system, there are many application and these applications drain the battery and after being satisfied, complainant took his mobile back. Complainant again approached OP-3 on 15.01.2016 with blank display problem and engineers of Company after thoroughly checking the phone, changed the display of mobile with the consent of complaint and did not charge anything from him. Thereafter, in the month of April/2016, complainant again visited answering OP and when answering OP checked the handset, it was found to be out of warranty. However, on merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering opposite party and asserted that all the allegations levelled by complainant are false and fabricated and no financial loss or inconvenience is caused to him. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party.

 6                                 On notice, OP-2 appeared through Proprietor Mukesh Kumar on 2.06.2016, but thereafter, nobody appeared in the Forum on behalf of OP-2 either in person or through counsel. It is clear that OP-2 had sufficient notice of complaint, but it did not come present in the Forum intentionally, therefore, vide order dated 27.07.2016, OP-2 was proceeded against ex-parte.

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 document Ex C-2 and then, closed the evidence.

8                                 In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Rajinder Pal Singla/Proprietor as Ex OP-1,/1 and then, closed the evidence of OP-1. Ld counsel for OP-3 also tendered in evidence affidavit of Amardeep as Ex OP-3/1 and document Ex OP-3/2 and then, closed the same on behalf of OP-3.

9                                  We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

10                                 Ld Counsel for complainant has vehementally argued that complainant purchased one new LAVA XI Mobile hand set white in colour for Rs.7000/- on 15.04.2015 from OP-2 vide bill no. 449. It is contended that said mobile phone started giving problems just after 7-8 months of its purchase as it had some inbuilt defect. Complainant brought this fact to the notice of OP-1 and  OP-2, who asked him to hand over the said mobile phone to OP-1 and  complainant did the same and in turn OP-1 issued service job sheet having assessment of hardware problem. After some days, when complainant approached OP-1 to get back his mobile phone, he found that OP-1 had changed its display from white to black and when complainant asked him about this fact, he told him to go to OP-2. Complainant approached OP-2 and asked about the change in colour of display, then OP-2 assured him that as there is some manufacturing defect in his mobile and therefore, they would change the same. After some days, said mobile created a new problem of heating and its display stopped working properly. On this, complainant again approached OP-1 and 2 and disclosed the whole problem to them, but they did not listen anything, rather misbehaved with him and used rude language towards him in the presence of other customers. Repeated requests made by complainant for replacement of mobile bore no fruit. 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 alongwith litigation expenses.

11                                 To controvert the allegations levelled by complainant, ld counsel for OP-1 argued before the Forum that complaint is liable to be dismissed as it is filed on false and vague grounds. It is asserted that complaint is not maintainable as OP-1 is only a Service Centre that works under OP-3 and provides services as per terms and conditions of OP-3 and there is no deficiency in service on  his part. Complaint filed by complainant is without any technical report and without any expert opinion and it fails to mention that what kind of manufacturing defect is there in the said handset. It is further averred that complainant has not come to the Forum with clean hands and has concealed the true facts. It is asserted that in connivance with OP-2, complainant got issued the bill after 2-3 months of activation, to make it come under the warranty period and therefore, present complaint is liable to be dismissed. No cause of action arises against OP-1 as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b. Physical damage, c. Serial no. Missing, d. tampering, e. Mishandling/burnt. It is submitted that mobile of complainant barred by warranty period and thus, complaint filed by him is liable to be dismissed. It is asserted that complainant approached OP-1 on 22.09.2015 with battery problem and he was told by answering OP that battery back up depends upon its usage as in android system, there are many application and these applications drain the battery and after being satisfied, complainant took his mobile back. Complainant again approached OP-1 on 15.01.2016 with blank display problem and engineers of Company after thoroughly checking the said phone, changed the display of mobile with the consent of complaint and did not charge anything from him. Thereafter, in the month of April/2016, complainant again visited answering OP and when answering OP checked the handset, it was found to be out of warranty. OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of OP-1 and prayed for dismissal of complainant. He has stressed on document Ex OP-1/1.

12                      Ld Counsel for OP-3 argued that that complaint in hand is not maintainable as it is without any technical report and complainant has not come to the Forum with clean hands and has also concealed the material facts. It is asserted that complainant has no locus standi to file the present case and no cause of action arises against OP-3 as Company provides one year warranty subject to warranty conditions that in case the unit is barred by warranty due to warranty exclusion i.e a. Liquid logging, b. Physical damage, c. Serial no. Missing, d. tampering, e. Mishandling/burnt. It is submitted that complainant never complained regarding performance of the mobile and OP-2 is still ready to repair the mobile phone and thus, there is no deficiency in service on the part of OP-3.  It is asserted that complainant approached OP-3 on 22.09.2015 with battery problem and he was told that battery back up depends upon its usage as in android system, there are many application and these applications drain the battery and after being satisfied, he took his mobile back. Complainant again approached on 15.01.2016 with blank display problem and engineers of Company after thoroughly checking the phone, changed the display of mobile with the consent of complaint and did not charge anything from him. Thereafter, in the month of April/2016, complainant again visited them and when OP-3 checked the handset, it was found to be out of warranty. All the                                other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against OP-3. 

13                   The case of complainant is that he purchased a mobile phone from OP-2 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 his satisfaction. To prove his case, complainant  has placed on record copy of bill Ex C-2 and has reiterated his pleadings through Ex C-1. On the other hand, stand of OPs is that complainant has used the said mobile phone for continuous period of six months and he brought the phone to them after using it for long time. There is no manufacturing defect in mobile in question and even complainant has not produced on record any expert opinion. Moreover, OP-3 is still ready to repair the same if there is any defect. All the other allegations are totally refuted.

 14                         From the careful perusal of evidence and record placed on file, it is observed that complainant purchased the mobile in question from OPs and he is facing some problem in using the same due to some inherent defects. Ex C-2 proves that complainant is the consumer of OPs. Moreover, OP-3 has duly admitted in written statement that complainant approached him with some problem in his mobile on 22.09.2015 and it again approached him on 15.01.2016 alongwith his complaint pertaining to some defect in his mobile. Thus, from the careful perusal of record, it can not be said that mobile in question was totally free from defects and it did not give any problem to its user. As OP-3/Company is the manufacturer of mobile in question, therefore, it is their sole liability to supply thoroughly checked, defect free mobile phones to its customers. On the other hand, OP-1 cannot be held responsible for this, as OP-1 being the Service Centre of OP-3 has to work as per instructions of OP-3 and there seems to be no fault on the part of OP-1. OP-2 is mere a shopkeeper and is not the maker of mobile phone in question.

15                                          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-3 and is dismissed against OP-1 and 2. OP-3 is directed to replace the mobile phone in question with new one of same model. OP-3 is further directed to pay Rs.2000/-to complainant for harassment and mental agony suffered by him.  Compliance of this order be made within one month of date of receipt of the copy of this order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 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 Forum:

Dated: 7.11.2016

Member                President                                          (P Singla)            (Ajit Aggarwal)