Delhi

North East

CC/445/2015

Shri Riyazuddin - Complainant(s)

Versus

The Moble Care - Opp.Party(s)

18 Mar 2019

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. 445/15

 

In the matter of:

 

	Shri. Riazuddin (Raju) R/o B-6 Jyoti Nagar Delhi-110094	Complainant
	Versus
1.       2.           3.	Plant M-Lodhi Road West Jyoti Nagar, Shahdara Delhi-110094 The Mobile Care, B-36, Guru Nanak Pura Opp. V3S Mall Near Maharaja Benquet Hall Laxmi Nagar Delhi-110092 Micromax Infor Ltd. Micromax House, Plot No. 90B Sector 18 Gurgaon-122015	Opposite Parties

 

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

09.11.2015 18.03.2019 18.03.2019

 

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 narrated by the complainant are that he had purchased a Micromax A-089 Bolt mobile phone bearing IMEI no 911354602233677 manufactured by OP3 from OP1 seller/dealer on16.07.2014 vide invoice no 861 for a sum of Rs. 5,000/-. However, the said mobile phone started giving charging problem and when the complainant showed it to OP2, service centre of OP3 located at Laxmi Nagar Delhi on 05.05.2015, he was informed that the battery was defective. The complainant deposited the said mobile with OP2 on the same day vide jobsheet no. N030666-0515-16446228. The complainant was asked to collect the said mobile after one week. The complainant had purchased the said mobile for his daughter who was doing BSC from D.U. and the said mobile had important English notes and therefore the complainant had requested OP2 to returned the mobile as it is since his daughter’s exam were approaching. However OP2 did not handover the mobile for which reason complainant’s daughter failed in English. The complainant lodged a complaint against OPs with mediation cell on 09.06.2015 and on the date fixed there on 09.07.2015, counsel for OP3 submitted that the complainant’s A89 mobile cannot be repaired and therefore was given a swipe mobile of model A-76 on 05.08.2015 with a three month extended guarantee thereon till 05.11.2015 however the said mobile was only new to the extent of new cover and the internal parts were all old and therefore the complainant had to again deposit the said defective mobile with OP2 on 07.10.2015 vide jobsheet no. N030666-1015-19607350. By October 2015 end, counsel for OP3 refused to change the said defective mobile or replace it with a functional one and therefore the complainant was constrained to file the present complaint before this Forum praying for issuance of direction against the OPs for refund of Rs. 5,000/- towards cost of mobile and compensation of Rs. 1,00,000/- for mental harassment and Rs. 20,000/- towards litigation charges.

Complainant has placed on record copy of duplicate bill/ invoice for purchase of mobile from OP1, copy of jobsheets dated 05.05.2015, 09.06.2015 and 07.10.2015, mediation centre order/notices dated 09.07.2015 and 30.10.2015 and copy of mark sheet of complainant’s daughter.

2. Notices were issued to OPs on 23.11.2015. However notice sent to OP1 returned unserved due to ‘incomplete address’. OP2 and OP3 were served on 03.12.2015 and 19.01.2016 respectively. OP2 was proceeded against ex-parte vide order dated 11.03.2016.
3. OP3 filed written statement on 01.04.2015 wherein while admitting the factum of the purchase of subject mobile by the complainant on 16.07.2015 and submission of the same with OP2 on 05.05.2015 and 07.10.2015, took the preliminary defence that the subject handset was repaired by OP2 in October 2015 and the complainant was aksed to collect the same but instead of doing it, the complainant filed the present false, frivolous and baseless complaint. the OP3 submitted that it never denied to provide after sale service as assured under terms of the warranty limited to mechanical functioning of the mobile set without any external influence / interference to the complainant but the complainant wanted to drag the OPs in this unnecessary litigation to harass OP3. OP3 further took the objection that complainant had failed to produce any documentary evidence to support his allegation of defect in the handset or any expert report to that effect. Lastly OP3 urged that the limited warranty document which is a part of user manual and inserted with every package of a cellular phone clearly provides that the handset shall be repaired ‘free of charges’ if it is covered under warranty and replacement is limited to only those cases where repair is not possible or where there is a genuine problem of repeated repairs of the same problem. OP3 therefore prayed for dismissal of the present complaint since the OP3 had already given a swap handset to the complainant on 05.08.2015 and was not bound to give him a new one.
4. Rejoinder to the complainant written statement was filed by complainant in rebuttal to defence taken by OP3 in which the complainant submitted that in May 2015, he was informed by OP2 that the motherboard of the subject mobile was defective but was later on informed that the same was not available. The complainant further submitted that if there was no serious issue / defect with his previous A89 Model, why was he given another A76 model by OP3. 
5. Evidence by way of affidavit was filed by complainant as well as OP3  deposing in their respective capacity to delineate their grievance / defence.
6. Complainant submitted on 25.09.2018 that he was unable to trace OP1 despite efforts and was therefore directed to move proper application for deleting OP1 from the array of parties. Therefore, OP2 and OP3 are OP1 and OP2 now.
7. Written arguments were filed by complainant on 30.11.2018.
8. We have heard the arguments addressed by the complainant and have given our anxious consideration to the documentary evidence placed on record. During the course of arguments the complainant informed the Forum that his original mobile was never handed over back to him after submission on 05.05.2015 and the reason for not collecting the so called repaired mobile handset from OP2 in October 2015 was because the said handset also suffered from inherent defects and never functioned from the date that it was handed over to him and it was an old handset in a new cover which was given to befool the complainant by OP2.  

It can be seen from the job sheets dated 05.05.2015, 09.06.2015 and 07.10.2015 filed by the complainant that the subject mobile phone was under repair warranty when it was submitted for repairs with OP2. We do not appreciate the misguiding tactics adopted by OP3 to ostensibly present as if the subject mobile phone was out of warranty despite having admitted in its written statement that when it was deposited for the first time on 05.05.2015, the same was not in condition of repair and therefore a swap phone was handed over to the complainant on 05.08.2015. It was the bounden duty of OP3 to ensure that goods manufactured and sold by it are as per quality standard. It was duty of OP2 to hand over the subject mobile phone in duly repaired and functional condition back to the complainant without any inordinate delay. However, in the present case both OPs acted negligently in selling a defective handset which had to be repeatedly submitted for repairs from May 2015 to October 2015 but the recurring problem therein the OPs failed to resolve and paid no heed to the request of the complainant in this regard. Under these circumstances, it proves beyond doubt that the mobile handset which the complainant had purchased was suffering from defects which was admitted by OP2 itself in its written statement and therefore a swap handset was given in lieu thereof since the defects therein could not be rectified despite repeated submission and the complainant was deprived of service of his handset in this duration and the mobile phone in fact is with OP1 till date. The OPs cannot be permitted to hold the complainant at ransom by their callous attitude in attending the problem of consumer. Therefore selling defective mobile phone and inordinate delay and failure to repair the phone on the part of OP2 tantamounts to deficiency in service on the part of OPs giving rise to the present complaint when the complainant failed to get any positive response and lost faith in OPs owing to their pathetic and poor service.

From the admission of the complainant, he had used the subject mobile for ten months within warranty period from mid July 2014 to early May 2015. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission, therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half. Therefore relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of mobile.

In view of deletion of OP1 seller / dealer, the ASC and Manufacturer are OP1 and OP2 respectively, we therefore direct OP1 and OP2 i.e. authorized service centre and manufacturer jointly and severally to refund a cost of Rs. 3,000/- to the complainant towards the depreciated cost of mobile.We further direct OP1 and OP2 jointly and severally to pay a sum of Rs. 5,000/- to the complainant towards compensation for mental harassment inclusive of litigation charges. Let the order be complied with by OP1 and OP2 jointly and severally within 30 days from the date of receipt of copy of this order, failing which penal interest @ 9% shall be payable to the complainant on the awarded sum of Rs. 8,000/- by OP1 and OP2 jointly and severally from the date of passing of this order till realization / payment.

9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  18.03.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)                    Member