Delhi

North

CC/245/2017

VED PRAKASH - Complainant(s)

Versus

VISHAL JOSHI - Opp.Party(s)

28 Nov 2022

ORDER

 

                                       Consumer Complaint No. 245/2017

Sh. Ved Prakash

S/o Sh. Pitamber Singh

R/o B-61, S. No.2, North Chhajjupur

Shahdara, Delhi-110094                                                                   …COMPLAINANT

                                                                        VS

1. Sh. Vishal Joshi

MI Service Centre

D-164, Near BTW Kamla Nagar,

New Delhi-110007…OPPOSITE PARTY-1

 

2. Sh. Arun Kumar

M/s M bulls Services

D-2, 1^st Floor, main Vikas Marg

Opposite, Metro Pillar No.32

•  

 

3. Sh. Rohit Choudhary

M/s VI Communication

V-196, 1^st floor, Shakarpur

Laxmi Nagar, main Vikas Marg…OPPOSITE PARTY-3

•  

 

4. M/s Flipkart Internate Pvt. Ltd.

Vaishanvi Sumit 80 Ft. Road, 3^rd Floor

Kara Mangla Industrial,

Layout Banglore, Karnataka… OPPOSITE PARTY-4

 

5. M/s Sane Retails Pvt. Ltd.

161 Ground Floor, Sector-4 MDC

Panchkula, Haryana, India-124113… OPPOSITE PARTY-5

 

6. M/s Xiaomi Technology India Pvt. Ltd.

Building Orchid –Block E,

EmbassyTech Village, Marathahalli,

Outer Ring Road, Devarabisanahalli

Bengaluru, Karnataka, Pin-560103…OPPOSITE PARTY-6

 

 

 

    ORDER

1.  

 

ASHWANI KUMAR MEHTA, MEMBER:-

            The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the Complainant had bought Note 3 Mobile phone, manufactured by OP-6, through Flipkart on 02.12.2016. After about two-three months, the mobile phone started problem of overheating and proximity sensor. Therefore, the Complainant approached various Service Centers of the OP-6 as per the details given below to get the faults rectified:-

	Date	Name & Address of Service Centre
First Visit	02.05.2017	Vishal Joshi , MI Service Centre, D-164, Near BTW Kamla Nagar, Delhi-110007
Second Visit	03.05.2017	Vishal Joshi, MI Service Centre, D-164, Near BTW Kamla Nagar, Delhi-110007
Third Visit	05.08.2017	M Bulls Services D-2, Ist Floor, main Vikas Marg, Opp. Metro Pillar no. 32, Delhi-110092
Fourth Visit	06.11.2017	VI Communication U-196,  Ist Floor,  Opp. Metro Pillar No.32, Shakarpur, Laxmi Nagar, Main Vikas Nagar, Delhi-110092

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Since the faults remained un-rectified, the Complainant preferred instant complaint in this commission praying for refund of Rs. 11,999/- as cost of the mobile phone and also Rs. 1,00,000/- as compensation for the mental pain & harassment.

Accordingly, notices were issued to the OP 1to 3 and 5 only as the OP-4 was deleted at the time of admission of the complaint. Despite service of the notice, OP-1 to 3 did not appear nor did they send any representative or communication. As such, the OP 1 to 3 were proceeded ex-parte. The OP-6, manufacturer of the mobile phone, was later on, also impleaded as party in this complaint, on the application of the Complainant.

 In response to the Notice issued, the OP-5 and OP-6 have filed replies which are discussed below:-

REPLY SUBMITTED BY THE OP-5 

     (M/s Sane Retails Pvt. Ltd.)

 

The aforesaid answering Opposite Party denied all the allegations, content, and statements of the complaint stating that it is not engaged in the sale of any goods manufactured or produced by its own. The answering Opposite Party is engaged in sale of goods manufactured and produced by other manufacturer. Thus, Answering Opposite Party have a separate and distinct identity from that of the manufacturer of the product i.e. Xiaomi India and there is no relation of Principal & agent between Xiaomi India mobile company and answering Opposite Party. The products sold by the answering Opposite Party carries manufacturer’s warranty. As a reseller, involvement of answering Opposite Party in the entire transaction is limited only to selling the products of various manufacturers and in the present Complaint, the Manufacturer of the mobile is M/s. Xiaomi India Pvt. Ltd. It is pertinent to mention here that there has neither been any shortage of supply nor any deficiency of service on the part of the answering Opposite Party. Liability to provide after sale services does not lie upon the answering Opposite Party as the answering Opposite Party is neither the manufacturer nor the service centre. The Complainant has Grievance only against the manufacturer and its authorized service centre for not providing after sale services and the answering Opposite Party has no role to play in offering or providing after sale services to the customers. The dealer or retailer cannot be held liable for defect in the good/products in view of the legal position laid down by Apex Court in “Hindustan Motor Ltd., and another Vs. N. Sivakumar (2000) 10 SCC 654” and in “Abhinandan Vs. Ajit Kumar Verma and Ors. (2008) CPJ336 (NC)”. Hence, the complaint is not maintainable against the answering OP.

REPLY SUBMITTED BY THE OP-6 

                                       (M/s Xiaomi Technology India Pvt. Ltd.)

 

The aforesaid answering Opposite Party, (while admitting the transaction of sale & delivery of Mobile phone to the Complainant, Mr. Ved Prakash) has submitted that on May 02, 2017, the Complainant approached the authorized service centre (Opposite Party No. 1) of the Opposite Party No. 6 with issues related to the product. The Complainant informed the service engineer that the product was facing issues related to “Proximity Sensor Fault and handset Overheat”. The service engineer duly recorded the issue in service job sheet no. WXIN1705020004639 and provided the job sheet to the Complainant. After examining and reviewing the product at the service centre, the defects related to “Proximity Sensor Fault and Handset Overheat” in the product was duly repaired by the technicians of the authorised service centre of the Opposite Party No. 6 as per the standard warranty conditions and the product was duly returned to the Complainant in proper working condition.

On May 03, 2017 the Complainant again approached the authorised service centre (Opposite Party No. 1) of the Opposite Party No. 6 with issues related to the product. The Complainant informed the service engineer that the product was facing issues related to “Proximity Sensor Fault”. The service engineer duly recorded the issue in service job sheet no. WXIN1705030003973 and provided the job sheet to the Complainant.         After examining and reviewing the product at the service centre, the defects related to “Proximity Sensor Fault” in the product was duly repaired by the technicians of the authorised service centre of the Opposite Party No. 6 as per the standard warranty conditions and the product was duly returned to the Complainant in proper working condition.

On August 05, 2017 the Complainant again approached the authorised service centre (Opposite Party No. 2) of the Opposite Party No. 6 with issues related to the product. The Complainant informed the service engineer that the product was facing issues related to “Handset Overheat and No Charging”. The service engineer duly recorded the issue in service job sheet no. WXIN1708050002614 and provided the job sheet to the Complainant. After examining the product for defects, it was ascertained that the product had suffered customer induced damage. The technicians of the authorised service centre of the Opposite Party No. 6 duly informed the Complainant about the issue in the product and also requested the Complainant to pay repair costs since customer induced damage is not covered under standard warranty terms & conditions applicable to the product. The Complainant duly paid the repair costs and the product was duly repaired and delivered to the Complainant in proper working condition.

On November 06, 2017 the Complainant, thereafter, again approached the authorised service centre (Opposite Party No.3) of the Opposite Party No.6 in connection with defects in the product and informed the service engineer that the product was facing issues related to “light sensor and handset overheating”. The service engineer duly recorded the issue in service job sheet no. WXIN1711060003122 and provided the job sheet to the Complainant. After examining the product for defects, it was ascertained that the product had suffered liquid damage i.e. damage due to exposure to liquid. The technicians of the authorised service centre of the Opposite Party No. 6 duly informed the Complainant about the liquid damage in the product and also requested the Complainant to pay repair costs since liquid damage is not covered under standard warranty terms & conditions applicable to the product. The Complainant however refused to pay the repair costs and the product was duly returned to the Complainant without repair.

The Opposite Party further submitted that there is no deficiency of service on the part of Opposite Party No. 6 or any of its agents. The Complainant was duly advised by the authorised service centre of the Opposite Party No. 6 to pay the estimated costs for the repair since any kind of customer induced damage (such as exposure to water in the present case) is not covered under the warranty terms and conditions applicable to the product. Additionally, since the warranty terms and conditions applicable to the product clearly states that if the product suffers customer induced damage caused due to exposure to water at the hands of the Complainant, the product will automatically be held to be “Out of Warranty”. In the present case, the applicable warranties accompanying and governing sale of the product to the Complainant clearly and specifically exclude any warranty for customer induced damage (such as liquid damage caused due to exposure to water) to the product. In Bharathi Knitting V. D.H.L. Worldwide Express Courier, (1996) 4 SCC 704, the Hon’ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract. The OP-6 has also referred the judgment passed by Hon’ble District Consumer Disputes Redressal Forum, Chandigarh (Anil Kumar v. The J. R. Enterprises, Consumer Complaint No. 92 of 2014).

The Complainant is well aware that the liquid damage to the product is not covered by applicable warrant as the Complainant received a copy of the warranty upon delivery of the product (with the product and product packaging). The Complainant had damaged the product in a manner not covered by the applicable product warranties, and seeks by virtue of this complaint to recover costs that the Complainant is contractually and legally precluded from recovering. The OP-6 has also referred the citations/judgements in the matters of (1) Managing Person, Sri Sai Ram Motors v. Maggidi Srinivas, FA No. 853 of 2012, (2) in Mahindra & Mahindra Ltd. vs. B.C. Thakurdesai and Anr., II (1993) CJP 225 (NC), and (3)Tata Engineering & Locomotive Co. Ltd. and Anr. V. M. Moosa, 1994 (3) CPR 395, stating that even if the Complainant were entitled a remedy in connection with defects in the product, (which in this case, the Complainant is clearly not entitled to any such remedy) such remedy would be limited to repair or replacement of the defective part of the product and not replacement or refund associated with the entire product.

While filing the evidence by way of affidavit, the OP-6 had also filed an application for production of the alleged defective product for examination stating that in the present complaint, the alleged defective product has been duly received and examined by the service centre of Opposite Party No. 6 where it was ascertained that the product has suffered liquid damage. Therefore, to prove manufacturing defect in the product, the physical condition of the product is required to be examined by this Hon’ble Forum. The application was allowed and the mobile phone was inspected by Sh. Rahul, Service Engineer of OP-6 but the OP-6 had submitted an affidavit from its Service Engineer named Sh. Khushi Ram (Mukesh) S/o Shri Gaj Raj Singh stating that “he was present along with Engineer – Rahul of Vaishanavi Enterprises, Laxmi Nagar, for inspecting the handset of the Complainant. The handset was examined by Rahul under his supervision. Since the engineer Rahul has resigned, he, being service centre manager, and partner during examination, affirm the below facts and evidence.-

1. That I along with service engineer has inspected the Complainant’s handset i.e. the Redmi Note 3 device bearing IMEI No. 863408035067900.
2. That as per this Hon’ble Forum direction the Complainant’s handset was inspected by me before this Hon’ble Forum on May 13, 2019. On inspection of the device, the photographic evidence taken at time of inspection is attached as Annexure A and corresponding to the device, and my conclusions.
3. In brief, and as established by the accompanying photographic evidence, the Complainant’s mobile device has suffered damage as a result of being exposed to water. There are multiple technical evidences establishing this and I have discussed each one below.
4. In the course of my inspection of the Complainant’s device, I found that LDI within the motherboard of the Complainant’s device have turned red / pink due to exposure to water. The Hon’ble Court is respectfully requested to see the annexed photograph which clearly show LDI have turned red / pink.”

 

COMPLAINANT’S AVERMENTS IN REJOINDER AND EVIDENCE

      BY WAY OF AFFIDAVIT TO THE REPLY OF THE OP-6

 

The Complainant has filed rejoinder and evidence by way of affidavit to the reply of the OP-6 denying that the Complainant has not presented any evidence to demonstrate that the alleged liquid damage to the products is a consequences of a defect in the product and not a consequences of use or mishandling by the Complainant. It has further been submitted by the Complainant  that the Complainant has no knowledge of liquid damage in the handset and the Complainant is not an engineer of the mobile phones but he is a simple user.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             The Complainant approached the authorised service centre of the Opposite Party No. 6 on multiple occasions in connection with defects in the product. The technicians of the authorised service centre of Opposite Party No. 6 on all occasions duly received the Complainant’s product, examined it for defects and repaired the product as necessary, in accordance with the warranty terms and conditions as applicable and under which product was sold. The complainant has denied the contents of Para No. 29 of the submissions of OP-6 and has stated that he has paid the cost of the repair to the authorized service centre. He has prayed for refund of Rs. 11,999/- as cost of the mobile phone and also Rs. 1,00,000/- as compensation for the mental pain & harassment.

                                                            FINDINGS                                                   

            The complaint has been examined in view of the facts of the case and averments/documents submitted by both the parties and it has been observed that:-

1. The fact that “the Complainant’s mobile was received in four service Centres of the OP-6 at different locations from time to time for rectification of the faults” is admitted fact and is not in dispute.
2. The OP-6, being manufacturer of the phone, was duty bound to provide service to the buyers of the phone.
3. The OPs-1, 2 & 3 (the authorized service Centres of OP-6) have deliberately avoided participating in the proceeding under the planned strategy to lead safe defense by the OP-6 otherwise they would have been properly instructed by the OP-6 to participate in the proceedings of the Commission being its Agents.
4. The OP-6 has presented a service engineer named Mr. Rahul before this Commission for inspection of the mobile phone (subject matter of this complaint) but surprisingly, filed an Affidavit from another engineer named Sh. Khushi Ram (Mukesh) S/o Shri Gaj Raj Singh on the ground that the engineer Sh. Rahul has resigned. The Affidavit filed by Sh. Khushi Ram (Mukesh) S/o Shri Gaj Raj Singh states that he is service Centre Manager and this handset was examined by engineer Sh. Rahul under his supervision whereas the court proceedings reveal that the only engineer Sh. Rahul was present in the Court who inspected the mobile phone. It raises doubt over the intention of the OP-6 as it would have obtained a fair inspection report from the Engineer Mr. Rahul before accepting his resignation. Since OP-6 failed to obtain a fair report from its concerned Engineer who attended the Commission’s proceedings, it managed a false affidavit from another employee to mislead the Commission in support of its defense.
5. The OP-6 has not made it clear as to why he has not brought the engineers from  service Centres mentioned at OPs-1,2 & 3 to inspect the mobile phone in the Commission whereas all these service Centres have already repaired the phone  (subject matter of the Complaint).
6. Neither Complainant nor any of the OPs have demanded for laboratory examination of the mobile phone during proceedings.
7. The explanation/reply furnished by OP-5 appears reasonable and no deficiency in service can be attributed to him.

 

               In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service of the OP-6 (M/s Xiaomi Technology India Pvt. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, We feel appropriate to direct:-

1. the OP-6  (M/s Xiaomi Technology India Pvt. Ltd.) to  Refund   Rs.11999/- to the Complainant within thirty (30) days from the receipt of this order,  with interest at the rate of 9% p.a. from 06-11-2017 till the date of the payment;
2. the OP-6 (M/s Xiaomi Technology India Pvt. Ltd.)  to deposit Rs.2000/- (Rupees Two Thousand only) in the State Consumer Welfare Fund as cost imposed by this Commission for managing and filing false affidavit from Sh. Khushi Ram (Mukesh) S/o Shri Gaj Raj Singh within 30 days of this order failing which the cost shall be deposited with interest @9% per annum from the date of order till the date of payment;
3. the OP-6 (M/s Xiaomi Technology India Pvt. Ltd.) to pay a sum of Rs. 10,000/- (Rupees Ten Thousand Only) to the Complainant towards compensation on account of the mental torture, agony and harassment suffered directly by the Complainant within 30 days of this order failing which  interest @ 9% per annum will be paid till the date of payment;

 

            Copy of this Order be sent to the parties as per Rules.

            File be consigned to Record Room

 

 

            ASHWANI KUMAR MEHTA                                         DIVYA JYOTI JAIPURIAR

                                                 Member                                                                          President

                                 DCDRC-1 (North)                                                         DCDRC-1 (North)