Chandigarh

DF-I

CC/408/2016

S. Avtar Singh - Complainant(s)

Versus

The Lenovo India Pvt. Ltd. - Opp.Party(s)

Harmanjit Singh Jugait

21 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

 

                               

Consumer Complaint No.	:	CC/408/2016
Date of Institution	:	03/06/2016
Date of Decision	:	21/03/2018

 

S. Avtar Singh son of S. Bir Singh residents of House No.1732/2, Sector 39-B, Chandigarh.

…..Complainant

V E R S U S

1.     The Lenovo India Pvt. Ltd., Vatika Business Park, 1^st Floor, Badshah Pur Road, Sector : 49, Sohna Road, Gurgaon, through its Managing Director.

2.     The Sant Rameshwari Enterprises, SCO 26, Sector 20, Chandigarh through its Prop.

……Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                       

ARGUED BY	:	Sh. Abhimanyu Partap Singh Sekhon, Counsel for complainant
	:	Sh. Pankaj Khullar, Counsel for OP-1
	:	OP-2 ex-parte.

Per Rattan Singh Thakur, President

1.         The allegations, in brief are, the complainant is a consumer as he purchased a Lenovo K3 note mobile phone through online which was manufactured by OP-1. However, after one month from its delivery, problems regarding voice non audible to callers came into existence. The mobile was taken to the service centre/OP-2 and the defects were pointed out which were repaired. The complainant retained three job sheets out of seven with regard to his visit to the service centre. Thereafter, the complainant approached OP-1.  The facts were apprised and some parts were replaced. However, the same problems persisted. Emails were sent alongwith legal notice dated 30.3.3016. Subsequently, on intimation the mobile was replaced, but, in the new set also the problems persisted. The matter was again brought to the notice of OP-2 vide Annexure C-6 dated 11.5.2016.  Hence, the present consumer complaint with the prayer to replace the defective handset or refund the price thereof alongwith compensation and costs of litigation.
2.         OP-1 contested the consumer complaint and filed its written statement. It is claimed that the mobile was shipped to one Krishna at Madurai and billing was in the name of Syed Abdul Kader at Madurai, therefore, the complainant is not a consumer. Further it was claimed that the said set was duly repaired free of cost under warranty on all occasions and there was no manufacturing defect in the same.  The OP also replaced the set.  On these lines the claim is sought to be defended.
3.         None appeared on behalf of OP-2 despite due service. Therefore, vide order dated 23.9.2016, OP-2 was proceeded ex-parte.
4.         The complainant filed rejoinder and facts averred in the complaint were reiterated.
5.         Parties have adduced evidence by way of affidavits and written arguments were also filed.  We have heard the learned counsel for the parties and gone through the record.
6.         OP-1 justified and defended the complaint for the simple reason that the complainant does not fall in the definition of a consumer as the mobile was shipped in the name of one Mr. Krishna at Madurai and billing was in the name of Mr. Syed Abdul Kader at Madurai. The said persons have not preferred the present consumer complaint.  In this regard, Section 2 (1)(d) of the Consumer Protection Act is relevant and the same reads as under :-

“(d)   "consumer" means any person who, —

(i)     buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

xxx           xxx           xxx”

A bare perusal of this provision shows that in the definition of consumer, any user of such goods other than the person who buys such goods for consideration paid or promised is also included. It is not the case of the OP that the complainant is not the user.  Therefore, it is immaterial whether it was shipped in the name of one person and was billed in the name of another.

7.         Per pleadings of the parties, it is admitted case that the mobile set of the complainant had developed defects and many times it was checked in the service centre of OP-2 and was rectified time and again.  It is also the admitted case, in spite of repairs having been done, the problem was not solved.  It is also admitted case of OP-1, the mobile set in question was replaced and a new handset was given.  There is no dispute with regard to these facts. 
8.         Further, it is the case of the complainant that even the replacement set provided also developed the same problem and this fact was brought to the notice of OP-2.   Annexure C-6 dated 11.5.2016 reflects, intimation was sent, but, the problem was not rectified.  Affidavit has been furnished that many defects were noticed as per job sheets viz. upgrade of software, mike repaired; mike replaced; motherboard replaced; software was installed and lastly replaced the mike, touch screen and other necessary parts. 
9.         In the written arguments, the contention raised by learned counsel for OP-1 is, the complainant becomes consumer only when he proves beyond doubt that the purchase was made by him and sale consideration, date of purchase and description of goods is clearly stated. Help in this regard was taken from R. Sarto Irudayaraj Vs. Sivanesan & Co. & Anr., II (2013) CPJ 729 (NC). The facts of the relied case and the present consumer complaint stands on different footings. In the present complaint, it is the admitted case that the complainant is the user.  It is also admitted case that he got the mobile repaired from OP-2.  It is further the admitted case that OP-1/manufacturer had replaced the first set with another one, which also developed the same defects.  Hence, the authority relied upon by OP-1 does not hold good to the facts of the present case.
10.         Resultantly, the present consumer complaint deserves to succeed and the same is accordingly partly allowed qua OP-1. OP-1 is directed as under:-

1. To immediately replace the mobile handset in question with a new one of the same make/model and fresh warranty, within a period of thirty days, failing which it shall refund its invoice value i.e. Rs.9,999/- to the complainant.
2. To pay Rs.3,000/- to the complainant as compensation for deficiency in service and mental agony and harassment caused to him;
3. To pay to the complainant Rs.2,000/- as costs of litigation.

11.         This order be complied with by OP-1 within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
12.         The consumer complaint qua OP-2 has been dismissed with no order as to costs.  
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-	Sd/-
21/03/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President