Date of filing : 19.4.2018
Judgment : Dt.15.11.2018
Mr. Ayan Sinha, Member
This petition of complaint is filed under Section 12 of the C.P.Act, 1986 by Swetabja Mondal alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely – (1) The Director, Xiomi Technology India Pvt. Ltd. and (2) The Manager-in-charge Infotel Services.
Case of the Complainant in brief is that the Complainant, by profession a student, purchased a Smartphone of Xiomi Redmi Note3 by paying Rs.11,999/- on 27.11.2016 but the said smartphone had cropped up some defects within warranty period of 1 year and the Complainant reported the matter to the OPs in April 2017, on 28.8.2017 and on 30.8.2017 respectively. The Complainant has stated that he approached the OP in April, 2017 with the problem of defective touch screen which had been sorted out within a couple of weeks and thereafter on 28.8.2017 with another problem of defective charging port which had been sorted out within one day and lastly on 30.8.2018 for defect on proximity sensor and non-functioning of ‘Pocket mode’ and the Complainant was told by OP No.2 that it would take at least one month to sort out the defect and finding no way the Complainant lodged a complaint with National Consumer Helpline and receiving advice from the NCH the Complainant sent an e-mail to the OP No.1 on 15.9.2017 demanding refund of Rs.11,999/- which remained unreplied and, therefore, the Complainant sent a copy of the e-mail to the OP No.2 on 17.10.2017. The Complainant has further stated that the OP No.2 tried to convince the Complainant that the said smart phone was never equipped with the said facility of ‘Pocket Mode’ though the Complainant used the facility of pocket mode since the day of purchasing the smart phone. It is stated by the Complainant that subsequently he purchased another phone to keep himself updated regarding ongoing process of admission in the college where he has been studying presently.
It is the specific allegation of the Complainant that the OPs have not refunded the amount of Rs.11,999/- yet and, therefore, the Complainant by filing the instant Consumer Complaint prays for direction upon the OPs to refund Rs.11,999/- along with interest @ 15% p.a., to payRs.30,000/- towards compensation and Rs.30,000/- towards cost of litigation.
The Complainant annexed letter dt.15.9.2017 issued by the Complainant to the OP No.1, Tax Invoice dt.27.11.2016, Service Record dt.28.8.2017, Job Sheet dt.30.7.2018. Copy of e-mail exchanges post receipts and track reports.
Notices were served but the OPs did not turn up so the case was proceeded ex-parte vide order No.6 dt.31.7.2018.
Decision with reasons
On perusal of the copy of invoice filed by the Complainant, it appears that the Complainant purchased a Xiaomi Redmi Note 3(Dark Grey 32GB) by paying Rs.11,999/-.
On perusal of the copy of service job sheet dt.28.8.2017 issued by OP No.2, it appears that the set was out of order, which was under warranty. The phone was repaired and delivered on 29.8.2017 by OP No.2.
Another copy of service job sheet dt.30.8.2017 issued by OP No.2 is also filed by the Complainant, wherefrom it appears that the product is still under warranty with major problem as mentioned “Sensor not work & Accelerator & Pocket Sensor not work” which implied the phone which was repaired and delivered on 29.8.2017, again cropped up with a different problem i.e. non functioning of proximity sensor on 30.8.2017. From the copy of e-mail exchanges dt.7.9.2017 between the Complainant and the Customer Services of OP No.1 it appears that OP No.1 has already brought the issue of the phone to the concerned team. But still the same has not been returned by the Service Centre even after several e-mail sent by the Complainant for the troublesome phone, for which the Complainant had to send e-mail again on 14.9.2017.
A copy of warranty statement down-loaded over internet is filed by the Complainant, which reveals that “Xiaomi shall provide free of charge repair and/or, also mentioned” during the warranty period, if any accessory defect is inspected and confirmed by a Xiaomi authorized service centre, a free replacement service shall be provided”.
Therefore, it is clear that although the Complainant has purchased the phone in dispute on 27.11.2016 and used it till April, 2017 but could not reap the benefit of new smart phone, since he had to visit Service Centre three times within 5 months from the date of purchase and had to carry on with the same mobile even after every repairing till 30th April, 2017.
In this matter we have relied upon Judgement passed by HON’BLE NCDRC in 2013 in TATA MOTORS VS RAJESH TYAGI & ANR decided on 03.12.2013 where HON’BLE NCDRC was pleased to observe:
“that whenever the brand new vehicle is sold to a consumer, there is implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.”
In instant case neither OP No.2 (Service Centre) nor OP No.1 (Manufacturer) redressed the problem for which the Complainant had visited Service Centre several times. Relying upon the decision as stated above, we hold that there is deficiency of service on the part of the OPs. Since the allegations remain unchallenged and unrebutted, so the Complainant is entitled to the reliefs.
The Complainant has prayed for compensation of Rs.30,000/- and litigation cost of Rs.30,000/- which are exaggerated.
In this matter, we have relied upon the decision of Honble Supreme Court [Charan Singh v. Healing Touch Hospital and Others,] reported in (2000) 7 SCC 668, where the HON’BLE Supreme Court was pleased to hold as follows:
“calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”
In the instant case the Complainant has not adduced any evidence showing the quantum of losses or the expenses he has incurred for the alternative arrangement by buying a new Smart phone except suffering, mental agony and mental harassment.
In our view if a direction be given to the OPs to repair the said phone along with an order to pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/- to the Complainant justice would be served.
In the result the consumer complaint succeeds.
Hence
ordered,
That CC/213/2018 and the same is allowed ex-parte against the OPs with cost.
OPs are directed to repair the Xiaomi Redmi Note 3 Smartphone and deliver the same to the Complainant’s address within 30 days without charging any extra amount.
OPs are also directed to pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/- to the Complainant within the aforesaid period.
The liabilities of OPs are joint and several.
