Delhi

North East

CC/3/2015

Vipin Kr. - Complainant(s)

Versus

Spice Mobile, The Managing Director - Opp.Party(s)

26 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.03/15

 

In the matter of:

 

	Vipin Kumar A-28/B Gali No.4 Ashok Nagar, Shahdara, Delhi- 110093.	Complainant
	Versus
	The Managing Director Spices Mobiles S Global Knowledge Park 19A & 19B, Sector-125 Noida-201301.	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

05.01.2015 26.11.2018 26.11.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts giving rise to the present complaint as summarized are that the complainant had purchased a Spice Mi-495 mobile phone  bearing IMEI No. 911255850063015 manufactured by OP1 from OP Spice Hot spot on 19.01.2013 vide invoice no. 108072580 for a sum of Rs. 10,300/-. However, after some time the said handset started giving battery problem and when the complainant visited the OP2 service centre, he was informed that the battery was completely damaged and the OP1 had stopped manufacturing the battery of the said mobile phone and the same could be replaced with an upgraded model of the mobile phone for which complainant asked to deposit Rs. 2500/- with OP2 alongwith the phone and all the accessories. The complainant therefore submitted the subject mobile with OP2 on 28.08.2014 alongwith the handset and made a payment of Rs. 2500/-. At the time of depositing the phone, the complainant was assured by OP2 of receiving a new phone within a week but did not receive any till next four months despite trying to communicate with OP2 and the complainant even sent a letter dated 18.11.2014 to the OPs for redressal of his grievance calling upon the OPs to resolve the issue failing which he shall be constrained to invoke legal proceeding under consumer protection Act. However OPs paid no heed to redress complainant’s grievances. Therefore vide the present complaint the complainant, alleging deficiency in service and unfair trade practice on the part of OPs has prayed for issuance of directions against the OPs to replace the mobile handset in question with a new upgraded model and Rs. 10,000/- as compensation for mental agony suffered by the complainant and Rs. 1,000/- towards cost of litigation.

Complainant has attached copy of purchase invoice dated 19.01.2013, copy of service request no. 30100878E80419 dated 28.08.2014 for deposit of mobile handset with OP2 on payment of Rs. 2500/- and copy of notice dated 18.11.2014 by complainant to OPs with courier receipts.

2. Notice was issued to the OPs on 03.02.2015. OP1 entered appearance on 26.08.2015 and filed written statement in which it took the preliminary objection that the present complaint was wholly misconceived, groundless and unsustainable in law as there was no deficiency in service since the handset in question was ‘Out of Warranty’. Further OP1 stated that the complainant had purchased the subject handset on 19.01.2013 which carried a limited warranty of one year i.e. upto 18.01.2014 against any manufacturing defect and the battery of the handset carried limited warranty of six months i.e. upto 18.07.2013 against any manufacturing defect, both of which had long expired by the time the handset was submitted for repairs with OP2 and the complainant had himself admitted that the battery of handset was completely damaged which clearly shows that it was ‘warranty void’ which cannot be entertained under limited warranty condition and therefore the OP1 stood released from its warranty obligation immediately upon expiry of limited warranty. OP1 further stated that the complainant had approached it for repairing of the subject mobile for the first time on 28.08.2014 and therefore no question arose for replacement of handset and any deficiency of service on the part of OP1 and therefore prayed for dismissal of complaint. OP1 has attached copy of limited warranty terms and conditions and copy of service request no. 30100878E80419 dated 28.08.2014 showing ready for delivery dated 30.10.2014 and mobile being out of warranty with problem of battery backup low and action code RA2 for payment of Rs. 350/-.
3. Rejoinder was filed by the complainant in rebuttal to the defence of OP1 in which the complainant negated the defence taken by OP1 submitted that the OP1 instead of inserting a new battery in the handset had inserted a defective battery in it at the time of selling the same and the OPs failed to keep their word of replacement of handset with an upgraded model despite complainant having paid Rs. 2500/- and deposited the handset with accessories in August 2014 with OP1 which act of OPs is ‘deficiency of service’ since OP2  had itself informed the complainant that the battery of the handset in question was not available and as per company policy they were to provide the complainant with a new handset in place of old handset against the cost of Rs. 2500/- to upgrade the model.
4. Evidence by way of affidavit was filed by the complainant in which the complainant averred that OP1 was vicariously for the act of OP2 which was the authorized service centre of OP1. Complainant has exhibited the documents relied upon him as exhibit CW1/1 to Exhibit CW1/5 as invoice, mobile messages, service request and notice dated 18.11.2014.
5. Despite efforts, complainant could not locate fresh address of OP2 since notices were being returned repeatedly with postal remark ‘left’ and therefore in view of the application filed by the complainant on 06.04.2016 for deletion of OP2 from the array of parties, OP2 was deleted.
6. OP1 failed to file its evidence despite several opportunities and its right to file the same was closed vide order dated 11.03.2015. OP1 failed to appear after April 2016 and its right to file written arguments was closed vide order dated 04.09.2018.
7. Written arguments was filed by the complainant in reiteration of his grievance against the OPs in which the complainant during the course of oral arguments, argued, while admitting that the subject mobile was out of warranty  that even during the warranty period, the complainant had made several enquiries from OP1 about availability of battery for Spice Mi-495 but was told that OP1 had stopped manufacturing the said handset and it was in August 2014 when the complainant visited OP2 that he was informed by the service center employees that OP1 offer replacement of his old mobile phone with upgraded model against payment of Rs. 2500/- and the complainant did the needful but OP1 neither returned his old handset nor gave a new replacement or refunded back Rs. 2500/-. Therefore the complainant revised his prayer in terms of quantum of relief by way of refund of Rs. 2500/- and Rs. 5,000/- towards litigation expenses and also direction to OPs to return his old handset.
8. We have heard the rival contentions of both the parties and carefully perused the documentary evidence placed on record by both the sides.

The complainant has himself nowhere pleaded that the subject mobile phone was giving for repair during the warranty period. After warranty period, if the complainant wanted to get his mobile repaired, he was supposed to make payment for repairs which as per documentary evidence he had deposited a sum of Rs. 2500/- with OP2, service centre of OP1 alongwith the mobile phone and accessories on 28.08.2014. Alongwith the written statement filed by OP1, the OP1 had filed the service request bearing the same SR number and date as that filed by the complainant with the difference that the said SR bore the ready for delivery date as 30.10.2014 and action code RA2 for which a sum of Rs. 350/- was charged from the complainant by OP2. When the Forum put a specific query regarding the aforementioned SR attached with the written statement of OP1 to the complainant as to why the additional Rs. 350/- was charged from him and why he did not collect the mobile handset in question on 30.10.2014, he was non committal and feigned ignorance / lack of knowledge of same. We are not convinced with same however since on the date the written statement was filed by OP1, the copy of the same was given to the complainant who was present in person before this Forum.

It is not plausible / logical to even assume that the OP would have committed to the complainant to replace the old handset with a new upgraded one on a mere deposit of Rs. 2500/- and thereafter Rs. 350/- for non availability of battery for the handset in question i.e. Spice Mi-495. However, OP2 was not traceable and did not come forth before this Forum to put forward its defence and therefore an adverse inference of non repair of the subject mobile despite receipt of consideration for the same shall be drawn against it amounting to deficiency of service but since it has already been deleted by the complainant from the array of parties in the present complaint, OP1, being the manufacturer whose authorized service centre OP2 was is held vicariously liable for deficiency of service for acts of omissions on its part.

9. We are supported in our observation by the judgment of Hon’ble National Commission in the case of Dina Nath Yadav Vs Micronas Telecom Nokia Authorized Service Center III (2017) CPJ 61 (NC) in which the Hon’ble National Commission held that after warranty period, any repair in the mobile shall be on chargeable basis and it is immaterial whether repair charges exceed cost of new mobile or not. In the present case, the complainant in his written arguments has prayed for return of his old handset and refund of money deposited with OP1 alongwith damages.

We therefore, holding OP1 guilty of deficiency of service direct OP1 to handover the old handset of the complainant in its original form and to refund Rs. 2,850/- charged from the complainant towards mobile repair/ battery replacement. We further direct the OP1 to pay a sum of Rs. 2,500/- to the complainant as compensation for mental agony and Rs. 1,500/- as cost of litigation. Let the order be complied within 30 days from the date of receipt of copy of this order.

10. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  26.11.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member