Haryana

Panchkula

CC/208/2019

M/S RAGHAV WATER PURIFIER. - Complainant(s)

Versus

TRESOR SYSTEM PVT.LTD & OTHERS. - Opp.Party(s)

AMARDEEP SHARMA & SAURABH GAUTAM.

04 Oct 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	208 of 2019
Date of Institution	:	04.04.2019
Date of Decision	:	04.10.2022

 

 

M/s Raghav Water Purifier, 28, Abheypur, Main Market, Panchkula Through its Prop. Sh. Rahul Raghav son of Shri Om Sat, resident of House No.251, Village Abheypur, Panchkula-134113.

                                                                           ….Complainant

 

Versus

1.     Tresor System Pvt. Ltd. SCO No.36, Ground Floor, Sector-11, Panchkula through its Authorised Signatory.

2.     Apple India Pvt. Ltd.Through its Managing Director, 19^th Floor Concrade Tower C, U B City No.24, Vittal Malya Road, Bangalore.

3.     F1 Info Solutions and Services Pvt. Ltd. SCO No.817-818, First Floor, Sector-22-A, Chandigarh, through its Managing Director/ Authroised Signatory.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person.

                        Sh.Manjinder Kumar, Advocate for OP No.1.

                        Ms. Jyoti Rani, Advocate for OP No.2.

                        None for OP No.3(Evidence closed vide order dated                          11.02.2022).

ORDER

(Satpal, President)

1.             The brief facts of the case are that the complainant had purchased an I-phone7+32 GB Black bearing IMEI No.353779085847939 from OP No.1 vide retail invoice no.PNCK1811PI0012 dated 02.02.2019 for an amount of Rs.48,398/-. The said mobile was purchased by the complainant through Sh.Rahul Raghav, who is Prop. of the complainant firm and the said phone was purchased for the business as well as personal use of Sh.Rahul Raghav. The said mobile had warranty of one year. It is alleged that  rear camera  as well as flash light  of the said phone were found not working properly and accordingly on 18.02.2019, the OP no.3 was approached who issued the job-sheet vide case ID No.JCHA1902181559763. The complainant visited OP No.3 i.e. service centre on 21.02.2019 and 24.02.2019 but the defects in the mobile set were not rectified. It is further alleged that the set in question is still lying  with OP No.3 since 18.02.2019 and till date Sh.Rahul Raghav is running from pillar to post seeking redressal of his grievance. Finally, a legal notice was got sent on 28.02.2019 to OPs.  Due to the act and conduct of Ops, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.             Upon notice OP No.1 appeared through counsel and filed written statement wherein it is averred that as such the complainant is not entity having any existence in law as it is a proprietary concerned which does not have any existence, right or entitlement to initiate any action. The mobile set was purchased for commercial purposes and thus the complainant is not a consumer. It is alleged that the mobile set was functionally properly when it was taken out of the sealed covered and it had no defect. It is alleged that the defect if any has occurred due to the negligence or rough usage of the mobile set by Sh.Rahul Raghav. It is further alleged that mobile set was given to the complainant in sealed covered which had no manufacturing defect in it and thus the complaint is liable to be dismissed.

                Upon notices, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable and the complainant has not come with clean hands. It is averred that the mobile set was found tempered by 3^rd party and thus is not covered under the warranty conditions. It is further alleged that the complainant has breached its warranty conditions by violating, its terms and conditions as contained in Clause ‘F’. The mobile set has no manufacturing defect in it and the complainant had failed to bring any evidence substantiating any defect in the mobile set. The complainant has not produced any expert report to prove that the set was defective and thus, the complainant is liable to be dismissed.    

                The OP No.3, who is authorized service centre to OP No.2 has filed its separate statement raising preliminary objections therein that the present complaint is not maintainable qua the OP No.3 and that complainant has not approached with clean hands and suppressed the material facts. On merits, it is alleged that the mobile set in question was sent to Apple in original, wherein after its inspection, it was found beyond commercial repair and accordingly, it was not liable to be repaired as per Field Service Report on 18.02.2019. It is further alleged that a standby mobile set was provided to the complainant. It is further alleged that complainant has not come to take back the said in question.

3.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the Authorised representative of OP No.1 tendered affidavit Annexure R-A and closed the evidence. The ld. counsel for the OP No.2 tendered affidavit Annexure R-2/A alongwith Annexure R-2/1 to R-2/4 and closed the evidence.

                During the course of arguments, the complainant tendered the copy of bill vide which he had purchased another mobile set. The bill is taken on record as Mark ‘A’ for the adjudication of the controversy in a proper and fair manner.

                The learned counsel for OP No.2 has prayed for assigning a particular number to the Field Service Report, which is already available on record as appended with the written statement filed by OP no.3. The prayer is genuine and thus, allowed. The said field service report is assigned the number as Mark ‘B’ for adjudication of the controversy in a proper and fair manner.

4.             We have heard the complainant as well as the learned counsels OPs No.1 & 2 and gone through the entire record including the written arguments filed by the complainant as well as OPs No.1, minutely and carefully.

5.             Admittedly, the mobile set in question was purchased from OP No.1 vide invoice dated 02.02.2019(Annexure C-1) amounting to Rs.48,398/- from OP No.1. It is also not in dispute that the rear camera and flash light were found not working properly as per job-sheet dated 18.02.2019(Annexure C-2). The OPs have denied the repairs/rectification of the defects of the mobile set in question only on the ground that the complainant had violated the terms and conditions as per inspection report dated 18.02.2019(Mark ‘A’) vide which the mobile set was found tempered by third party.

6.             During arguments, the complainant reiterating the averments made in the complaint controverted the contentions of the Ops qua his status as a consumer stating that mobile set was being used by him for personal use. It is contended that the rear camera and flash light were found defective since the very purchase of the mobile set which is corroborated by job-sheet(Annexure C-2). The complainant denied that any standby mobile set was ever provided to him as alleged by OP No.3.  The complainant argued that mobile set was defective since its very purchase & thus, he is entitled to refund of the purchase price i.e. Rs.48,398/- along with interest as well as compensation.

7.             First of all, we take up the objection whether the complainant fails under the category of the consumer. No doubt the mobile set was purchased in the name of complainant i.e. M/s Raghav water Purifier through its proprietor but undoubtedly, it was being used by Sh. Rahul Raghav for his domestic purpose including the work pertaining to the Firm.           

                In fact a person cannot be supposed to utilize two separate mobile sets, one for his own use and the another for the purposes of the firm. Sometime, the personal work as well as the firm’s work are so mixed up intricately, which cannot be separated from each other; therefore, the objection qua the status of the complainant as consumer is rejected.

8.             On merits, the learned counsel for OP No.1 as well as OP No.2 advanced similar arguments disputing the contentions of the complainant as raised in the complaint. The learned counsel for OP No.2 vehemently contended that complainant is not entitled to avail any benefit of the warranty as he had himself violated the warranty conditions by permitting the 3^rd party to interfere unauthorizedly with the mobile set. In this regard, the learned counsel invited our attention towards field service report dated 18.02.2019(Mark-A), wherein the mobile set was described being beyond commercial repair. Reiterating the averments made in the written statement, the learned counsel has prayed for dismissal of the complaint being frivolous and baseless.

9.             Since, the sole defence of the OPs is based on the field inspection report dated 18.02.2019, it is necessary to look into it minutely and thoroughly. On the minute perusal of the said field service report, the following remarks have been found i.e. “unit beyond commercial repair/ inspection failure”. The said remarks do not convey in any manner that the mobile set was tempered with by any 3^rd party. Moreover, there is no documentary evidence in the shape of affidavit of the concerned engineer, who had inspected the mobile set in question. Though the said report bears the signature of some person, but the column of engineer’s name is found blank and accordingly, no reliance can be placed on the said field service report. Furthermore, the mobile set was purchased on 02.02.2019 and the rear camera and flash light of the same were found defective on 18.02.2019 as per job-sheet(Annexure C-2), thus, it was within the warranty period. It is unbelievable/incredible that a person would permit a 3^rd party to interfere or temper with the mobile set within the warranty period. Therefore, the OPs were deficient, while not repairing the mobile set during the warranty period and thus the complainant is entitled to relief.

10.            In relief, the complainant has prayed for refund of the purchase price of mobile set whereas in the complaint he had claimed for the replacement of the set with new one. The complainant has placed on record, the copy of bill to show that he had purchased an another set for a sum of Rs.30,990/-; therefore, we deem it expedient to direct the OPs No.1 to 3 jointly and severally to refund a sum of Rs.48,398/- to the complainant along with interest 9% p.a. w.e.f. date of filing of the complaint till its actual realization and we order accordingly. Further, the OPs are directed to pay an amount of Rs.5,000/- on account of mental agony and harassment and further litigation charges.

11.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:04.10.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal         

           Member                          Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal,                             

                                        President