Hon’ble Mrs Rumpa Mandal, Member.
The concise fact of the complaint petition is that the Complainant Sri Rahul Kumar Saha residing at P.O. & Vill- Durga Bari, Ward No.5, Dist- Cooch Behar. Due to urgent need of the Complainant purchased the first mobile from O.P. No.1, the Manager, Xiaomi Service Centre, Subhaspally More, Kali Mandir, P.O. & Dist- Cooch Behar, vide IMEI No.861487050401831 and the same was replaced by the OP. Due to the defect of mobile on the ground of getting it heated. So, he ordered on 07.07.2021 and received on 12.07.2021 vide Invoice No. C006945006419943, IMEI No.861487050400057, Order No.5210707283666791, MI 11 Ultra Smart Phone amounting to Rs.69,999/-(Annexure-1 Copy of Invoice). After purchased the above noted mobile within One year Eleven months, Complainant faced the problem relating to WIFI connectivity, within the warranty period and the warranty period was extended by the O.P. N.2 itself (Annexure-2 Copy of the twitter handle). On 05.06.23 O.P. No.1 received the above noted defective mobile and the O.P. No.1 later informed the Complainant verbally that the issue had been recognized by the Company and the Complainant have been given two option i.e. Free replacement with Xiaomi 12 pro and Upgrade to Xiaomi 13 Pro by paying Rs.30,000/-. The registered Office of the O.P. No.1 is Hotel Ellora, Cooch Behar but now they situated in Subhash Pally More, Cooch Behar. The Complainant was not happy with the options and raised a complaint over twitter on 16.06.23 and later with no response Complainant sent an email to the Xiaomi Service Manager on 22.06.23 and 02.07.23 (Annexure-3 Copy of email dated 22.06.23). Subsequently OP sent reply on 01.07.23 through email and admit regarding fault to mobile (Annexure-4 Copy of reply). The Complainant’s complaint was registered later but the response was same as earlier two options. Being not received any satisfactory response, Complainant had sent an email to the O.P. No.2 on 02.07.23. The O.P. No.2 did not replace the mobile of the Complainant nor return the money back. The Complainant lastly filed a complaint before the Consumer Affairs and Fair Business Practices, Cooch Behar on 20.07.23 and the OP after appearing before the Consumer Forum intentionally not settle the matter (Annexure-5 Copy of Order). The Complainant is legally entitled for repaired the mobile as per terms and conditions of warranty card. Both the O.Ps done gross negligence as well as deficiency in service against the Complainant. Due to illegal activities of the O.Ps, Complainant suffered loss as well as mental agony. The cause of action for the present case arose on 07.07.21 when the Complainant purchased the mobile and on 05.06.23 when the O.P. No.1 received the defected mobile and on 20.07.23 when the Complainant filed written complaint and it is still continuing. The Complainant therefore prayed for an order against the O.Ps to replace the MI-11 Ultra Mobile with the same model or refund the total mobile cost of Rs.69,999/- with up to date interest and to provide free replacement with the Xiaomi 13 Pro with the same storage option, Rs. 1 Lakh as mental agony as well as deficiency in service and Rs.20,000/- for litigation cost.
As per Order No.05 dated 23.11.23 the case was heard ex-parte against O.P. No.1.
The O.P. No.2 contested the case by filing written version denying each and every allegation in black and white. The positive defence case of the O.P. No.2 in brief is that the Complainant Mr. Rahul Kumar Saha has purchased a mobile handset namely MI 11 Ultra mobile phone on July, 26th 2021 for Rs.63,000/-. The product sold and delivered to the Complainant bears an IMEI No. 861487050400057. On June 5, 2023 the Complainant approached the authorised service centre of O.P. No.2, alleging to face an issue with WIFI connectivity in the product. Wherein, the technician of the authorised service centre examined and inspected the product. The technician of the O.P. No.2 duly informed the Complainant that the product would take some time to repair as there is shortage of parts in the state and will be sourced from the available region which will take some time. However, as a good will gesture and for customer satisfaction the authorised service centre of the O.P. No.2 offered the Complainant a different product. However, the Complainant refused the offer of the O.P. No.2 and demanded a higher cost model handset and was not willing to pay the difference amount. The OP submitted that these technical equipments/ parts are sometimes not available readily and undergoes shortage. O.P. No.2 has not delayed deliberately in providing its services on a timely manner. The O.P. No.2 has provided utmost service and therefore there is no deficiency of service. It is established principle that if the handset is repairable, the handset will be repaired fast and if not repairable then it will be replaced. It is only when the handset cannot be replaced, a refund is initiated. However, the Complainant refused to accept the replaced handset and demanded higher cost model handset and was not willing to pay the difference amount. The O.P. No.2 has provided utmost services according to the warranty terms and conditions. It is clear that there is no deficiency in service on the part of the O.P. No.2 or any agent and the present complaint should be dismissed in limini. The O.P. No.2 respectfully submits that the Complainant has not presented any technical evidence by way of a technical report from a reputed technical laboratory in support of his allegations to establish that the product is suffering from a manufacturing defect which was ought to be produced with this complaint. Therefore, there is no cause of action against the O.P. No.2 and the complaint is not maintainable against the O.P. No.2. The Complainant approached the authorised service centre of O.P. No.2 alleging to face an issue with the WIFI connectivity in the product. Wherein, the technician of the authorised service centre examined and inspected the product. The technician of the O.P. No.2 duly informed the Complainant that the product would take some time to repair as there is shortage of the parts in the state and will be sourced from the available region which will take some time. However, as a good will gesture and for customer satisfaction the authorised service centre of the O.P. No.2 offered the Complainant a different product. The Complainant refused the offer of the O.P. No.2 and demanded a higher cost model hand set and was not willing to pay the difference amount.
The product purchased by the Complainant is presently suffering from a defect and such defect is a manufacturing defect. So, there is no deficiency in service on their part. So, the O.P. No.2 is not liable to pay any compensation as claimed by the Complainant. The O.P. No.2 therefore prayed that the case is liable to be dismissed with cost.
We have gone through the materials on record very carefully, perused the documents of the Complainant and O.P. No.2 heard ex-parte argument against O.P. No.1 advanced by Ld. Advocates of the Complainant and O.P. No.2 at length.
Points for Consideration
- Is the case maintainable in its present form and prayer?
- Is the Complainant is entitled to get any relief as prayed for?
- To what other relief if any, the Complainant is entitled?
Decision with reasons
Point No.1.
Admitted fact is that Complainant ordered the mobile set on 07.07.2021 and received on 12.07.2021 vide Invoice No.Coo6945006419943, IMEI No. 861487050400057, Order No.5210707283666791, MI 11 Ultra Smart Phone at a consideration of Rs.63,000/- within 1 Year 11 months, Complainant faced the issue relating to WIFI connectivity. On 05.06.2023, O.P. No.1 received the above noted defective mobile and the O.P. No.1 later informed the Complainant that the issue had been recognised by the company and the O.P. No.2 have given two option i.e. (1) Free replacement with Xiaomi 12Pro and (2) Upgrade to Xiaomi 13Pro by paying Rs.30,000/-.
The date of purchase of the defective product is 12.07.21 and the date of detection of fault is 10.06.23. The O.P. No.1 issued an inspection sheet being (Annexure-2) from which it appears that within warranty period WIFI connection could not be connected.
It is also important to consider that O.P. No.2 never filed any petition for challenging the maintainability of the case. The O.P. No.2 has just evasively denied the case of the Complainant. Thus, it is clear from the above facts that there is a consumer service provider relation among the parties. Thus, having perused the pleadings and the evidence on record this Commission is of the view that the case is maintainable in its present from and prayer under the C.P. Act, 2019.
Accordingly, Point No.1 is in favour of the Complainant.
Point Nos.2 & 3.
Both the points are taken up together for consideration of discussion as they are related to each other.
It is evident from the evidence on record that while he was using the mobile set, some problems arose and he went to the shop of the O.P. No.1 with Xiaomi MI 11 Ultra set and disclosed that the mobile phone was not working, alleging to face an issue with the WIFI connectivity in the product. The Complainant sent an email to the Xiaomi Service Centre manager on 22.06.23 and OP sent reply on 01.07.23 through email and admitted the fault of mobile (Annexure-4). Being not received any satisfactory response, Complainant sent an another email to the O.P. No.2 on 02.07.23.
It is found that the Complainant purchased the Xiaomi MI 11 Ultra Smart Mobile handset on 11.07.24 and it appeared defective within warranty period. It is evident from the documents that the Complainant gave within warranty period on the product i.e. the mobile set Xiaomi MI 11 and it was found defective within warranty period. We found that neither the O.P. No.1 i.e. Xiaomi Service Centre nor O.P. No.2 i.e. Officer-in-charge Xiaomi India President fulfilled their said promise. It amounts to deficiency from service on the part of the O.P. No.1 & 2. It also amounts to unfair trade practice.
It is further evident from the evidence on record that from the inspection sheet it was found that the mobile handset was defective within warranty period. It is the duty of the O.P. No.1 & 2 to remove the defect and if the same is not repairable the Complainant should be compensated by another set of the same type or return the value, which he paid at the time of purchase of the said mobile set. But the O.Ps did nothing in this ground.
Ld. Advocate for O.P. No.2 argued that the Complainant had not examined the product by an expert and to whether there was manufacturing defect in the said product. So, Complainant cannot get relief.
It appears from the case record that OP also has not filed any application for expert opinion for the examination of the said product by an expert as to whether there was manufacturing defect of the product. So, the defence plea is not accepted. There is no cross-examination in this regard.
Thus, both the points are decided in favour of the Complainant.
Hence, it is
Ordered
That the present complaint be and the same is allowed on contest against O.P. No.2 and ex-parte against O.P. No.1 with cost of Rs.5,000/-.
The O.P. No.1 & 2 are directed to refund the amount of Rs.63,000/- the cost of the Mobile Handset the MI 11 Ultra. The O.Ps are further directed to pay Rs.25,000/- for mental pain and agony as well as deficiency in service. The O.Ps are liable to pay the aforesaid amount jointly and/or severally. The O.Ps are directed to pay the total amount of Rs.93,000/-(Rupees Ninety Three Thousand only) to the Complainant within 30 (thirty) days from the date of passing Final Order failing which the entire awarded sum will carry an interest @ 6% per annum from the date of Final Order till the date of realization thereof.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available on www.confonet.nic.in.
Dictated and corrected by me.
