BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 237 of 2017
Date of Institution : 22.9.2017
Date of Decision : 23.2.2018
Nar Singh Lal aged about 51 years son of Shri Jetha Ram resident of House No.35, Global Space, Sector 21, Sirsa, District Sirsa.
……Complainant.
Versus.
1 Uniques Sales Corporation, Opposite Head Post Office, Sirsa through its proprietor.
2 Reliance Jio Infocom Ltd., 9th Floor, Maker Chamber-IV, 222, Nariman Point Mumbai through its authorized person.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh.Sarjeet Singh, Advocate for the complainant.
Sh. Sanjay Sihag, proxy counsel for Sh. H.S. Raghav, Advocate for ops.
ORDER
In brief, the case of complainant is that the op no.2 is the manufacturer of LYF mobiles, whereas the op no.1 is the authorized dealer of the op no.2. the complainant on 22.09.2016, purchased a New mobile hand set LYF Wind 5 White bearin IMEI No.911501500645804 from the op no.1 vide Bill No.28312 dated 22.09.2016 and the op no.1 had charged a sum of Rs.5500/- from the complainant qua the price of the mobile hand set. At the time of purchase of said mobile hand set, the op no.1 had given to the complainant one year guarantee with the assurance that in case of any defect within the period of guarantee, the same shall be removed immediately free of cost and he also assured that in case of manufacturing defect, the said mobile hand set shall be replaced with new one or in the alternative the amount equivalent to the price of mobile will be returned to the complainant within three days of complaint. Thereafter, the complainant started using the said mobile but after sometime, the said mobile started giving troubles such as automatically switched off, voice problem, heat, etc. immediately after coming to know about the problems, the complainant contacted the op no.1 and requested to remove the defects after getting the same checked. The op no.1 kept the said mobile set with him for removing the defects and assured the complainant that the same shall be handed over to him within a period of 5-7 days. Thereafter about 10 days, later the hand set was delivered to the complainant but the problems were remained same is it were. The complainant again contacted the op no.1 and requested to remove the defects but the op no.1 asked the complainant to contact the op no.2 through toll free number and to lodge a complaint in this regard. Acting upon the instructions of the op no.1, the complainant lodged a four complaints on the toll free number of the op no.2 vide reference no.80010569077 on four different occasions i.e. 1.2.2017, 15.2.2017, 1.8.2017 and 16.9.2017. But inspite of lodging four complaints, no positive response was received by the complainant from the side of ops. On dated 16.9.2017 when the complainant went at the shop of the op for removing the continuing problem of the mobile set then they raised their hand and refused to do anything. The condition of the mobile is going to be deteriorated day by day as the same is lying unused. From the condition of the mobile itself, it seems that there is manufacturing defect in the mobile and thus the complainant is legally entitled to get the same replaced with fresh piece as promised by the op no.1 at the time of sale of the mobile. Such act and conduct on the part of the ops amount to deficiency in service and unfair trade practice and the complainant also has suffered mental shock, agony, disappointment and hardship etc. for which he is legally entitled to be compensated. The ops also have deprived the complainant off from the facility of contacting his office as well as society. Almost since the day of purchase of the said mobile, the complainant has been making rounds and rounds to the shop op no.1 and has been making repeated requests either to replace the defective mobile with new or in the alternative to refund the amount equivalent to the price of the mobile to the complainant but inspite of repeated requests and a number of personal visits to the shop of the op no.1, no response has been received. The op no.1 simply raised his hands for providing any kind of assistance to the complainant in this regard since 3 days before filing the complaint said the complainant to directly contact the op no.2 for replacement of the mobile or the return of the price of mobile. Hence, this complaint.
2. On notice, op no.1 & 2 appeared and filed written statement in which they have taken preliminary objections regarding no cause of action, maintainability, concealed and suppressed the true and material facts, It is further submitted that the complainant has falsely stated that op no.2 is the manufacturer of the disputed product i.e. LYF Wind 5. It is respectfully submitted that op no.2 i.e., Reliance Jio Infocomm Ltd. is neither manufacturer, distributor nor service center of the disputed product. It is submitted that there is no privity of contract between the replying op no.2 and the complainant. therefore, also, the complaint is liable to be dismissed against op no.2. On merit, it is submitted that op no.2 being manufacturer of LYF brand mobile handsets, are incorrect, incomplete, misleading and hence not admitted. It is further submitted that, op no.2 is not the manufacturer of the LYF brand mobile handsets, including the Product(as defined hereinafter). It is further submitted that, an affiliate of op no.2, namely Reliance Retail Ltd., has imported the Product, and sold and distributed in India through its distribution channel. It is submitted that the op no.1 is not authorized dealer of op no.2. It is further submitted that, warranty on the product is extended by Reliance Retail Ltd. It is further submitted that, Reliance retail do not extend any guaranty with the product. It is further submitted that the standard warranty on the handsfree and USB cable is extended for a period of 3 months from date of original retail purchase. It is further submitted that, the standard warranty on the charge and battery of product is extended for a period of 6 months from date of original retail purchase. It is further submitted that, the standard warranty on the Product(excluding battery, charger, USB cable and handsfree) is extended warranty for a further period of 12 months is also made available with the product provided the purchaser of the product activates the extended warranty as per the terms and conditions applicable for the same. It is further submitted that, warranty extended on the product is subject to warranty terms and conditions as contained in the warranty card accompanying with the product. It is submitted that purchase of product and subscription to telecom service are not inter-connected activities. It is further submitted that op no.2 i.e. Reliance Retail Limited do not provide telecom services. It is further respectfully submitted that the complainant should be put to strict proof to prove the factum on his averments. The complainant noticing the alleged problem in the product, complainant approaching op no.1 to complain about the alleged problems in the product, the op no.1 suggesting complainant to approach op no.2, pertain to a matter within exclusive knowledge of the complainant, therefore, the same are not admitted for want of knowledge. It is further submitted that complainant never visited any of the authorized service center for LYF brand mobile devices. It is further submitted that on 16.9.2017 representative of complainant visited authorized service center for LYF brand mobile devices, located at “Reliance Retail Ltd., 1st Floor, Rathore Tower, Dabwali Road, Sirsa 125055” for the very first time since purchase of the product, to report problem of auto off and display auto black some time, in the product, for which representative of complainant filled and completed customer Information Slip, representative of complainant deposited the product alongwith signed customer information slip with the LYF service center. It is further submitted that representative of complainant also made entry in the visitor’s register maintained by LYF Service Center, at the time of his entry in the premises of op no.2 on 16.9.2017. It is further submitted that, after depositing the product by representative of complainant, LYF Service Center created a job sheet bearing no.8011309061. It is further submitted that, after inspection and verification of the product, LYF Service Center did not find any hardware related issue in the product. It is further submitted that LYF Service Center, to resolve the functional issue, updated software of the product. It is further submitted that, after updating the software, the product has been functioning normally, which was demonstrated by LYF Service Center to the representative of complainant. It is further submitted that the product was properly checked by the representative of complainant, despite the product functioning normally, representative of complainant insisted for replacement of the product. It is further submitted that, LYF Service Center explained to the representative of complainant that replacement/repair, if any of the product is governed by the terms and conditions of warranty extended on the product, the representative of complainant insisted for replacement of the product. It is further submitted that as the LYF Service Center refused to replace the product beyond warranty terms, representative of complainant took back the product from LYF Service Center on the same day, that is, 16.9.2017 for which representative of complainant signed and acknowledged job sheet bearing no.8011309061, and left the premises of LYF Service Center. It is further submitted that after 16.9.2017, complainant or representative of complainant did not visit any of LYF Service Center, or any of the authorized service center for LYF brand mobile devices to report any further complaint in respect of the product. The complainant is not entitled to get any relief from this Forum against the answering ops and the complaint of the complainant may kindly be dismissed with heavy costs, in the interest of justice.
3. The parties have led evidence in the form of affidavits and documents. The complainant has tendered Ex.CW1/A- his own supporting affidavit; Ex.C1 bill, Ex.C2 to Ex.C4 copies of SMS, Ex.C5 warranty card, whereas opposite party did not tender any document.
4. We have heard Ld. counsel for the parties and perused the record carefully.
5. The Ld. counsel for the complainant in order to prove his case has submitted affidavit of the complainant Ex.CW1/A in which he has reiterated the same facts as in the complaint. Further he produced the original bill of sale of mobile Ex.C1 and copies of SMS Ex.C2 to Ex.C4, warranty card of mobile set in question Ex.C5.
6. On the other hand, the counsel for the ops have tendered in evidence written statement of the ops and closed the evidence. The fact of purchase of mobile set on dated 22.9.2016 for the sum of Rs.5500/- by complainant from ops with a warranty of one year is undisputed. After purchase of mobile set, the complainant started using the same. As per the allegations of the complainant that he lodged complaint four times for repair of mobile set but the same was not repaired and the mobile set could not be made defect free by the ops despite their best efforts. The complainant requested for replacement of the same on the ground that there is manufacture defect in the mobile set but ops refused to replace the same. On the other hand, there is specific averments that the op no.2 is not the manufacturer of the disputed product i.e. LYF brand mobile hand sets and affiliate of op no.2 namely Reliance Retail Limited has imported the product and sold and distributed in India through its distribution channel. The standard warranty on the handsfree and USB cable is extended for a period of 3 months from date of original retail purchase. The standard warranty on the charge and battery of product is extended for a period of 6 months from date of original retail purchase. The standard warranty on the Product(excluding battery, charger, USB cable and handsfree ) is extended warranty for a further period of 12 months is also made available with the product provided the purchaser of the product activates the extended warranty as per the terms and conditions applicable for the same. The claim of op no.1 retaining the product with it for repairs, returning the product to complainant after repairs and alleged problems in the product not getting rectified pertain to a matter within exclusive knowledge of the complainant. The complainant never visited any of the authorized service center for LYF brand mobile devices. LYF Service Center explained to the representative of complainant that replacement/repair, if any, of the product is governed by the terms and conditions of warranty extended on the product, however, the representative of the complainant insisted for replacement of the product, the official of the service center refused to replace the product beyond warranty terms & conditions, representative of the complainant took back the product from LYF Service Center.
7. The perusal of the evidence of the ops shows that neither they have placed on file any affidavit of any official nor placed on record terms and conditions of the warranty though they have admitted the warranty for the period of one year. It is proved fact on record that mobile set was within warranty when the complainant deposited the mobile set in the service center and same has not been repaired inspite of the fact of complaint made for four times.
8. Though during the course of the arguments, Ld. counsel for the complainant has contended that mobile set has manufacturing defect but he has not placed on record any document from which it could be presumed that the mobile set of the complainant suffers from some manufacture defect and the same needs replacement of the product but however it is the legal obligation of the ops to get the mobile repaired without any cost as the mobile set was within the warranty period and not providing service of repairing to the complainant amounts to deficiency in service on the part of the ops.
9. In view of above, we allow the present complaint and direct the opposite parties to carry out necessary repair of the mobile in question of the complainant and to make it defect free without any cost within a period of one month from the date of receipt of copy of this order but in case mobile set is not repairable, the ops shall be liable to replace the mobile of the complainant with a new one of same make and model within further period of 15 days and further in case it is found that mobile of same make and model is not available, then the ops shall be liable to refund the price of the mobile in question i.e. Rs.5500/- to the complainant within further period of one month. We also direct the ops to pay a sum of Rs.1500/- as composite compensation and litigation expenses to the complainant. All the ops are jointly and severally liable to comply with this order. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Forum. Member President,
Dated:27.2.2018. District Consumer Disputes
Redressal Forum, Sirsa.
