Tamil Nadu

South Chennai

CC/59/2022

Mr.S. Rohan - Complainant(s)

Versus

The Manager M/s ASUS INDIA PVT.LTD - Opp.Party(s)

Varalakshmi R

04 May 2023

ORDER

  Date of Complaint Filed:14.09.2021

  Date of Reservation     :17.04.2023

  Date of Order              :04.05.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                             : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,             :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,     : MEMBER II

               

CONSUMER COMPLAINT No.59/2022

 THURSDAY,THE 4^th DAY OF MAY 2023

Mr. S. Rohan,

S/o Mr. E. Subramani,

9/7A, Gandhi Nagar,

Link Road, Udhayasooriyan 2^nd Street,

Tollgate,

Chennai – 600 019.                                                       .. Complainant.

 

-Vs-

1.The Manager,

   M/s. Asus India Pvt Ltd,

   402, 4^th Floor,

   Supreme Chambers,

   17/18 Shah Industrial Estate,

   Veera Desai Road,

   Andheri West,

   Mumbi – 400 058.

 

2.The Manager,

   F1 Info Solutions & Services Pvt Ltd.,

   Unit No.11, 14 & 15,

   VGP Victory House,

   Near Sony Centre,

   Anna Salai,

   Chennai – 600 002.                                                  .. Opposite Parties.

* * * * *

Counsel for the Complainant   : M/s. R. Varalakshim &M/s. A. Sharmila Banu

 

Counsel for 1^st Opposite Party :   M/s. Arul Gnana Prakash,

                                                M/s. C.Balasubramaniam,

                                                M/s. R. Palaniandavan

Counsel for 2^nd Opposite Party:  Exparte on 01.06.2022

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the 1^st Opposite Party this Commission delivered the following:

ORDER

Pronounced by Member-I, Thiru. T.R. Sivakumhar., B.A., B.L.,

(i)     The Complainant has filed this complaint as against the Opposite Parties under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Parties jointly and severally to pay Rs.4,00,000/- to the Complainant towards her mental agony, pains and sufferings and direct the Opposite Parties jointly and severally to pay Rs.10,000/- as litigation expenses to the Complainant.

I.  The averments of Complaint in brief are as follows:-

1.     The Complainant had bought an ASUS ROG PHONE II Black 128 GB for Rs.37,990/- on 23.12.2019 from Flipkart and the IMEI number was 358298100555059. The warranty period for the mobile expired on 13.12.2020. The mobile has two charging slots, one in the side and other in the bottom. One of the charging slots in the bottom side of the mobile was not working on 18.04.2021, but the mobile was working in good condition. Hence on 19.04.2021 he went to 2^nd Opposite party being ASUS Authorized Service Centre in Chennai for repairing the Charging slot.

2.     The 2^nd Opposite party's employee informed him that they would charge Rs.250/- as diagnosis charge and it would be reduced in the service charges. After confirmation his mobile was disassembled for diagnosis and provided the charge sheet RMA No. SRASINCHE2104190004 Reported as AZZJ00-"Accessory Function Error and MEMO: Need Charger Only/ Heating Issue/ Mobile only Received" and nothing has been mentioned about any liquid damage in the unit and informed him that it costs around Rs.800 for replacing the charging Port, whereas the next day he got a call from the 2^nd Opposite party that they need to replace the sub board for the bottom charging slot and he had accepted the process.

3.     When he went to the 2^nd Opposite party's service center to receive the phone, he was shocked from the reply given by the service man that the mobile main board was damaged and the phone got dead, they need to replace the mother board of the mobile and it would cost around Rs.30,000. Due to negligence of the 2^nd Opposite party his mobile was got damaged by the service man and it became useless. On hearing the same, he went in to mental agony and asked his friend Mr. Mukesh to file a consumer complaint in online consumer helpline portal on 21.04.2021 with the grievance number: 2693947, wherein explained the entire facts happened, for which one Mr. Mathew, Officer from ASUS made a call to his friend Mr. Mukesh and got the explanation about the grievance given by him and remarked the said complaint on 23.06.2021 as they have rechecked the issue with their service Centre and problem seems to be created due to liquid spill in unit. Delay occurred due to service Centre under lockdown.

4.     The 2^nd opposite party had only damaged the mobile with liquid spill due to negligence and created the problem by making the mobile dead, till now he had not got the mobile from them which affected his daily activities for the past four months. A legal notice was sent to both parties regarding the issue but there was no reply even after receiving it. Thus the Opposite Parties 1 and 2 had committed Unfair trade practice and caused mental agony to him. Hence the complaint.

 

II. Written Version filed by the 1^st Opposite Party in brief:

5.     The Complainant has intentionally not impleaded product seller as one of the necessary parties to the complaint. The product was purchased by Complainant on 23.12.2019, hence the Complainant is not expected to see towards the manufacturer to maintain the product after expiry of the warranty period on free of costs basis. The present complaint has been filed after the expiry of warranty period, which is time barred and not maintainable and is liable to be dismissed. The Complainant had approached this Commission with unclean hands with clear suppression of material facts and had filed a false, vexatious, frivolous and baseless complaint with ulterior motive and mala-fide intention to cause harassment and prejudice them. The complaint does not made ground for relief under the provisions of section 39 of the Consumer Protection Act 2019, as it is a must for the Complainant to show that the relieves as contemplated under section 39 can be given for the defect in goods supplied or deficiency in service provided to the Complainant in the present case, it is crystal clear that there has been no deficiency in service on their part.

6.     The Complainant had prayed for the replacement of mobile handset and compensation, etc. The prayer of the complainant is beyond the warranty terms. As the manufacturer of the said product had extended LIMITED WARRANTY terms to the complainant, reliefs beyond the agreed terms and conditions accepted by the Parties cannot be given. The complainant has not suffered from any of the losses for which the complainant had prayed for compensation and for mental agony etc. The said product has been utilized by the complainant regularly from the date of purchase of the said product.

7.     The Complainant without producing any expert opinion had alleged problems in the said product or filed any documentary proof to establish that the Mobile Handset suffered from manufacturing defect as prescribed under section 38 (2) (c) of the Consumer Protection Act 2019, in absence of an expert report on behalf of the complainant. ought to have directed the complainant to produce an expert's report in support of his allegations as provided in section 38 (2) (c) of the Act above and in absence of the same the allegations of the complaint cannot be established.

8.     It is not disputed that the Complainant has purchased the said product of Asus. It is admitted that they had offered one-year limited warranty on the Mobile phone manufactured by it. The product is not suffering from any of the defect as alleged by the complainant. There is no manufacturing defect in the mobile phone, defect have been accrued due to mishandling of the mobile phone by the complainant. In fact Company has replacement policy of 7 working days from the date of unit purchase for any hardware non-damage issue and post this 1 year free repair warranty if the unit is damaged by the customer then the same shall not be covered under the warranty and for repair of such unit is chargeable. In the present case the complainant was facing issue with respect to the charging port therefore he had a visit at their Authorized Service Provider (Asp). When he approached ASP the mobile phone was out of warranty and therefore the repair of the same was on chargeable basis. The service engineer of the ASP on 19.04.2021 diagnosed the complainant's mobile phone and informed the complainant that charging port and mother board needs to be replaced. The charging port is connected to the main board of the handset.

9.     Main board of the mobile handset is one of the important parts of the mobile handset. All the parts are connected to the main board, in the present case the complainant had issue with respect to the one of the charging port/USB port of his mobile phone, it is admitted fact that when the complainant reported issue at ASP that time the alleged mobile handset of the complainant was out of warranty, charging port was got damaged due to mishandling of the mobile handset by the complainant that is considered as customer Induce damage. As the charging port is directly connected with the main board and during the diagnosis of the alleged mobile handset it was discovered that the main board of the mobile handset got damaged due to mishandling of the mobile by the complainant. It was communicated to the complainant the repair cost and also it is pertinent to note that an offer was given to the complainant orally which was denied by the complainant and was demanded for free of cost repair service. The photos of the alleged mobile handset of the complainant, and the affidavit of the service engineer who has diagnosed the mobile handset of the complainant and discovered that the main board of the mobile of the complainant was found in damaged condition, to be relied upon as and when required. There is no deficiency in services or unfair trade practice as falsely contended in complaint.

10.    The complainant has made false and baseless allegations against the Opposite Parties without producing any documentary evidence that the Opposite Parties have caused the damaged to the mobile handset of the complainant.

11.    The mobile handset of the complainant is out of warranty, a part of this the 1^st Opposite Party has no office situated at Chennai therefore the complainant has no cause of action and jurisdiction to approach this Hon'ble Commission regarding the issue of the mobile handset which is out of warranty. There is neither deficiency of service nor defective product being sold to the complainant by them. The mobile handset of the complainant was got damaged due to his mishandling which amounts to customer induced damage.

12.    That the contents of the reliefs are wrong false, fabricated and without any foundation. The complainant has concocted a false story with a view to bring the complaint under the ambit and jursdiction of this Hon'ble Commission. If further submitted that the manufacturer of the said product had extended LIMITED WARRANTY terms to the complainant. While entertaining and adjudicating the present complaint under the provisions of time-bound summary procedure, this Hon'ble District Commission is not vested with powers to go beyond the agreed terms and conditions accepted by the Parties. As such the present complaint is not maintainable and is liable to be dismissed. The complainant has not suffered from any of the losses for which the complainant is praying for the compensation and or mental agony etc. It is pertinent to note that it is admitted by the complainant that in the present complaint the alleged mobile phone of the complainant is out of warranty therefore the question of replacement of the mobile shall not arise. It is further stated that the complaint is filed for extracting money which clearly mentioned in the prayer clause. Hence this Hon'ble Forum does not have jurisdiction to exercise its power for recovery of monies. Defect or deficiency under the Consumer Protection Act 2019 has not been made out by the complainant and further complainant has to approach appropriate Civil Court for recovery of monies. Hence complaint to be dismissed with costs.

III. The Opposite Party 2 set ex parte:

        Notice was sent to the 2^nd Opposite Party and was duly served to the Opposite Party. Despite the notice being served to the Opposite Party he  failed to appear before this Commission either in person or by Advocate on the hearing date and not filed any written version on their side.  Hence the 2^nd Opposite Party was called absent and set ex-parte. Subsequently, the case was proceeded to be heard on merits.

IV.    The Complainant has filed his proof affidavit and Written Arguments, in support of his claim in the complaint and has filed documents which are marked as Ex.A1 to A6. The 1^st Opposite Party had submitted his proof affidavit and Written Arguments. On the side of 1^st Opposite Party documents were marked as Ex.B-1 to Ex.B-4.

V. Points for Consideration:-

 

1. Whether there is any deficiency in service on the part of the Opposite Parties?

 

2. Whether the Complainant is entitled for the reliefs

sought for?

 

   3. To what other relief,  the Complainant is entitled to?

 

 

POINT NO. 1 :-

13.    The undisputed facts are that the Complainant had purchased an ASUS ROG PHONE II Black 128 GB for Rs.37,990/- on 23.12.2019 from Flipkart and the IMEI number was 358298100555059 and the warranty period of one year given for the mobile expired on 23.12.2020. It is also not in dispute that out of two charging slots in the mobile, one slot in the bottom side was not working and given for repair on 19.04.2021 to 2^nd Opposite party being the 1^st Opposite Party’s Authorized Service Centre in Chennai.

14.    The disputed facts are that the 2^nd Opposite Party who had undertaken for repair had diagnosed the mobile and observed in the MEMO that the mobile Need Charger Only/ Heating Issue/ Mobile only Received, and informed him that for replacing the charging Port it would cost around Rs.800/-. But on the next day it was informed to him over phone that they need to replace the sub board for the bottom charging slot and he had accepted the process. When he approached the 2^nd Opposite Party in person it was informed to him that the main board of the mobile has to be replaced as the same was damaged and the phone got dead and the replacement of main board would cost around Rs.30,000/-. On hearing the same he got shocked as when he had handed over his mobile for repair to the 2^nd Opposite Party inspite of diagnosis made, had not informed about the same, hence he through his friend Mukesh had registered an online complaint on 21.04.2021 about the dead condition of his mobile caused due to negligence of the 2^nd Opposite Party, for which it was informed by the 1^st Opposite Party that they have rechecked the issue with their service Centre and problem seems to be created due to liquid spill in the unit. When he had handed over his mobile phone no such liquid spill in the mobile and the same was handed over with working condition as found and observed in the service form and nothing had been mentioned about any liquid damage in the unit. Hence it would be clear that the 2^nd Opposite Party had caused damage to his mobile and had made his mobile in dead condition, to supress their negligence had demanded Rs.30,000/- for replacement of main board which amounts to unfair trade practice.

15.    The contentions of the Opposite Party are that the subject product is not suffering from any of the defect as alleged by the complainant and there is no manufacturing defect in the mobile phone, defect have been accrued due to mishandling of the mobile phone by the complainant. As the subject product was out of warranty and any repair of the subject product was on chargeable basis. Their service engineer on 19.04.2021 diagnosed the complainant's mobile phone and informed the complainant that charging port and mother board needs to be replaced. As the charging port is connected to the main board of the handset and the Main board of the mobile handset is one of the important parts of the mobile handset. All the parts are connected to the main board, in the present case the complainant had issue with respect to the one of the charging port/USB port of his mobile phone, it is admitted fact that when the complainant reported issue the alleged mobile handset of the complainant was out of warranty, charging port was got damaged due to mishandling of the mobile handset by the complainant that was considered as customer Induced damage. As the charging port was directly connected with the main board and during the diagnosis of the alleged mobile handset it was discovered that the main board of the mobile handset got damaged due to mishandling of the mobile by the complainant. It was communicated to the complainant the repair cost and also it is pertinent to note that an offer was given to the complainant orally which was denied by the complainant and was demanded for free of cost repair service. They had produced photos of the alleged mobile handset of the complainant, and the affidavit of the service engineer who had diagnosed the mobile handset of the complainant and discovered that the main board of the mobile of the complainant was found in damaged condition. Hence there is no deficiency in services or unfair trade practice as falsely contended in complaint and the complainant is not entitled for any of the relief as prayed for in the complaint.

16.    On discussions made above and on perusal of records, it is clear that the Complainant’s subject mobile phone was diagnosed by the 2^nd Opposite Party being the Authorised service centre of the 1^st Opposite Party and observed on 19.04.2021 that the subject mobile phone of the Complainant needs Charger Only/ Heating Issue, as found in Ex.A-1 and is also clear that the subject mobile was in working condition at the time of handing over for repair to the 2^nd Opposite Party, as nothing was mentioned about the working condition or liquid spill in the subject mobile in Ex.A-1. It is also clear that immediately after coming to know about the claim made of replacement of main board at cost of Rs.30,000/-, when the subject mobile was handed over in a working condition, an online complaint as per Ex.A-2 was given by the Complainant against the 2^nd Opposite Party. The contentions of the 1^st Opposite Party that as per Clause 15 of the terms and conditions mentioned in the Service Form, Ex.A-1, the service form was issued based on initial inspection/reported problems and actual were subject to further physical verification & diagnosis and if a case of internal damage/CID was found the same shall be communicated separately to the customer and if required Revised TAT shall be agreed upon and after physical verification the damage in the subject mobile was found to be due to mishandling of the mobile handset by the complainant and the was considered as customer Induce damage, for which a photo and an affidavit, Exs.B-2 and B-3 filed by the person who had diagnosed the subject mobile has been filed explaining liquid spill in the USB port which caused short circuit, are not acceptable, as the subject mobile was found to be in working condition at the time of handing over for repair to the 2^nd Opposite Party, as nothing was mentioned about the working condition to whether the subject mobile was in dead condition instead had observed “need Charger only/Heating issue/mobile only received” and there was no mentioning about liquid spill in the subject mobile in Ex.A-1. Though the Subject mobile was out of warranty it would be clear that the 2^nd Opposite Party taking advantage of the same, having caused damage to the subject mobile after receipt of the same for repair in a working condition, when it was particularly reported for non-working of one charging slot and demand of Rs.30,000/- made for replacement of main board on the pretext of out of warranty. Further, though the 1^st Opposite Party had claimed that they communicated the issue to the Complainant, had failed to substantiate the same by producing authenticated evidence before this Commission.

17.    Hence it is clear that the 2^nd Opposite Party had negligently handled the Subject mobile of the Complainant by damaging the subject mobile causing liquid spill after receiving for repair when it is admitted by the Opposite Party the subject mobile was received for non-working of one charging slot out of two charging slots and made the subject mobile to dead condition, which clearly amounts to deficiency of service. Therefore this Commission of the considered view that the 1^st Opposite Party as Principal of the 2^nd Opposite Party being the Authorised service centre of the 1^st opposite Party vicarious liable for the negligent act of the 2^nd Opposite Party and hence the 1^st and 2^nd Opposite Parties had committed deficiency of service and had caused mental agony to the Complainant. Accordingly Point No.1 is answered.

POINTS NO 2 & 3

18.    As discussed and decided in Point No.1, against the Opposite Parties the Opposite Parties 1 and 2 are liable to return back the Mobile of the Complainant bearing Model ASUS ROG PHONE II BLACK 128GB in a good working condition and also to pay a sum of Rs.10,000/- towards deficiency of service and mental agony along with Rs.5,000/-. Accordingly, Point Nos. 2 and 3 are answered.

In the result, the complaint is allowed in part. The Opposite Parties 1 and 2 are directed to return back the Mobile of the Complainant bearing Model ASUS ROG PHONE II BLACK 128GB in a good working condition and also to pay a sum of Rs.10,000/- (Rupees  Ten Thousand Only) towards deficiency of service and mental agony along with Rs.5,000/- (Rupees Five Thousand Only) towards cost of the litigation to the Complainant within 8 weeks from the date of receipt of this order.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 4^th of  May 2023.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT

 List of documents filed on the side of the Complainant:-

Ex.A1	19.04.2021	Service Centre Charge sheet
Ex.A2	21.04.2021	Online consumer complaint
Ex.A3	07.08.2019	Legal Notice
Ex.A4		Acknowledgement Card
Ex.A5		Acknowledgement Card
Ex.A6	23.12.201	Purchase Bill

 

List of documents filed on the side of the 1^st Opposite Party:-

Ex.B1		Copy of warranty status inquiry
Ex.B2		Copy of Main Board charging connecter Liquid Log
Ex.B3		Copy of evidence
Ex.B4		Copy of authorisation letter

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT