MRS. FIROZA KHATOON, PRESIDENT
The case of the complainant is that she had purchased a Vivo brand mobile phone bearing model no.V21(8/128) Dusk Blue – Vivo, Batch : 866583059387116 dated 27.09.2021 under invoice no.CZ/K3/1362/21-22 for the price of Rs.29,990/- (Rupees twenty nine thousand nine hundred ninety) only including CGST and SGST and Tax from the shop of opposite party no.1. The opposite party no.1 provided warranty card to the purchaser in respect of the said mobile phone. According to the complainant after purchase of the mobile phone she is facing endless problem as it was not working properly. The petitioner is facing immense difficulty for malfunctioning of mobile phone and unable to communicate her online classes. The complainant, within the warranty period visited the service centre four times but no positive result yielded. The mobile is still lying in the service centre of opposite party no.2. Due to urgency the complainant requested opposite party nos. 1 to 3 to replace the damage mobile phone with a new mobile with fresh warranty period or to return the entire amount but they did not pay any heed to it. Opposite party no.1 being the service centre did not repair the mobile set. Therefore, the complainant wrote a letter on 08.12.2021 to opposite party nos. 1 to 3 but till date the opposite parties have not provided with a new mobile set with fresh warranty on replacing the defective mobile. The complainant alleges that there is deficiency in service and unfair trade practice on the part of opposite party nos. 1 to 3. So, she is entitled to get relief as prayed for.
It appears from the record that in spite of service of notice, opposite party no.2 has not appeared in the case and the case proceeded ex-parte against opposite party no.2.
Opposite party no.1 by filing written version stated that the complainant has not come before the Commission with clean hands and suppressed the material facts. According to opposite party no.1, on 01.11.2021 the complainant visited the service centre and alleged that the screen of the mobile phone becomes red and suddenly not working and off, audio not come while call comes and screen severing while using any apps. The service engineer checked the mobile thoroughly but did not find any defect, fault or anomaly. The complainant refused to hand over the mobile set to the opposite party no.1 for observation. On 13.11.2021, the complainant again visited the opposite party no.1 and alleged that screen touch was not working while using any app and suddenly screen becomes red and directly phone gets off and audio not coming. Again the service engineer checked the mobile thoroughly but did not notice any defect, fault or anomaly. The opposite party no.1 being service centre asked the complainant to leave the mobile for observation. Thereafter, the complainant left the mobile with opposite party no.1 for observation of the faults, defects and anomalies as alleged by the complainant and the complainant was given a ‘Vivo’ loaner mobile handset Y11 (3+32 gb) mineral blue having its IMEI no.865830055505659 by the opposite party no.1 which is currently in the possession of the complainant. The said loaner mobile set was supposed to be returned by the complainant to opposite party no.1 which she did not. There is no deficiency in service on the part of the opposite party no.1 as alleged by the complainant. As such the complaint case is liable to be dismissed.
Opposite party no.3 by filing written version states that opposite party no.3 is the manufacturer of the ‘Vivo’ brand mobile phone and has earned a good reputation and goodwill world wide as manufacturer of good quality mobile phones. The business policy of opposite party no.3 is to serve its customers and purchasers in the best possible way, leaving no grievance or dissatisfaction in any manner whatsoever. Opposite party no.3 categorically states that the complainant has not purchased the mobile phone form opposite party no.1 as opposite party no.1 is the service centre of ‘Vivo’ brand. The complainant has visited the opposite party no.1 on two occasions i.e. 01.11.2021 and 13.11.2021. Since, the complainant had kept her mobile phone with opposite party no.1 for observation, the complainant was provided with a mobile phone set by opposite party no.1 as a ‘loaner set’ for her use. However, in the instant case the complainant neither took back her mobile phone from opposite party no.1 nor retuned the “loaner mobile set”. According to the opposite party no.3 the said ‘Vivo’ loaner mobile handset Y11 (3+32gb) mineral blue having its IMEI no.865830055505659 is still in the possession of the complainant and being used by the complainant. The complainant has not taken delivery of her mobile phone handset from opposite party no.1 with an ulterior motive and malafide intention to make unjust and illegal gain at the cost of expenses of opposite party no.3. There is no deficiency in service on the part of the opposite party no.3 neither the opposite party no.3 is liable for unfair trade practice. As such the complaint case is liable to be rejected.
Considering the rival pleadings of the parties the following points are framed :-
Points for decision
- Is the complainant a consumer in terms of Consumer Protection Act, 2019 ?
- Is the complainant entitled to get relief as prayed for ?
Decision with reasons
In order to prove the case complainant has filed evidence on affidavit along with tax invoice dated 27.09.2021 marked document-1; warranty card marked document-2; acknowledgement receipt dated 13.11.2021 issued by opposite party no.1 marked document-3 and letter dated 08.12.2021 of the complainant marked document-4.
The opposite party no.1 submitted evidence on affidavit and subsequently supplementary evidence on affidavit on recall. Opposite party no.3 submitted evidence on affidavit and subsequently supplementary evidence on affidavit on recall.
Point nos. 1 & 2
For the sake of brevity and convenience both the points are taken up together for consideration and discussion.
On careful scrutiny of the evidence of the parties we find the followings are admitted facts :
- Complainant purchased a Vivo brand mobile phone bearing model no.V21(8/128) Dusk Blue – Vivo, Batch : 866583059387116 under invoice no.CZ/K3/1362/21-22 for the price of Rs.29,990/- (Rupees twenty nine thousand nine hundred ninety) only from opposite party no.2 on 27.09.2021. (document-1).
- The warranty period of the said mobile phone is for malfunctions of the mobile free replacement within 30 days of the purchase and repair service within one year. For battery, charger, data cable, wired headset and SD card, the repair warranty period is six months after purchase. (document-2).
- The complainant visited opposite party no.1/service centre on 01.11.2021 and 13.11.2021.
- On 13.11.2021 the mobile phone was deposited with opposite party no.1 for observation and the complainant was provided with a Loaner set and USB cable for using the same during the period of repair of the purchased mobile phone. (document-3)
- Thereafter, the complainant has not visited the opposite party no.1 either to get back her mobile set after repair or to return the Loaner mobile set. On the other hand sent a letter dated 08.12.2021 addressed to Vivo Head office. (document-4)
It is apparent on the face of the record that the complainant is consumer in terms of the Consumer Protection Act, 2019.
Now let us consider whether there was any deficiency in service or unfair trade practice on the part of opposite parties.
The mobile set was purchased on 27.09.2021 and first complaint was made by the complainant with opposite party no.1 on 01.11.2021 which was beyond 30 days from the date of purchase but certainly within one year of purchase.
In such circumstances, as per warranty (document-2) the complainant is entitled to get the mobile repaired if any fault or defect is detected.
However, the instant case has been filed on 03.02.2022. As such the case is not barred under section 69 of the Consumer Protection Act, 2019.
From the entire discussion made above we find that the complainant deposited the mobile with opposite party no.1 on 13.11.2021 for its service but she did not care to take it back from opposite party no.1 after its repair and files the case before this Commission.
There is no iota of evidence in this case to show that the opposite party no.1 refused to repair the mobile in question as per terms of the warranty card (document-2). The complainant has also not alleged that opposite party no.1 refused to repair the defect in the mobile set.
Therefore, we do not find any deficiency in service or any unfair trade practice on the part of the opposite parties. There is no cause of action to file the case.
However, from order no.8 dated 20.10.2022 it appears that there was an attempt by the Commission to settle the dispute between the parties through pre-counselling. During the talk of settlement the opposite party no.1 handed over the mobile phone of the complainant after its repair and the complainant retuned the Loaner mobile set to the opposite party no.1. Thereafter, opposite party no.3 came up with a proposal either to provide a new mobile phone of the equivalent configuration to the complainant and/or in case the existing mobile phone if not replaced with a new one, the opposite parties shall pay compensation to the complainant as shall be decided by the Commission. On 03.11.2022, the complainant informed the Commission that the repaired mobile phone is still suffering from defect. The representative of the opposite party no.1 immediately without even examine the alleged defect, agreed to replace the mobile phone by a new one with a fresh warranty period. On the next date i.e. on 07.11.2022 the representative of opposite party no.1 appeared before the Commission with a new mobile phone but the complainant took adjournment on the ground of her illness. On the next date i.e. on 07.12.2022 neither the complainant nor the opposite parties were found present. So, the complainant was asked to show cause as to why the case shall not be dismissed. On the next date i.e. on 13.12.2022 the complainant submitted her show cause which was accepted but the opposite party did not appear. Thereafter, the case was referred to National Lok Adalat for amicable settlement on the prayer of the parties to the case.
The National Lok Adalat held on 11.02.2023. The complainant as well as representative of the opposite parties were present.
The opposite parties were ready and willing to replace the mobile of the complainant against payment of Rs.3,000/- (Rupees three thousand) only as the complainant has not returned the charger and ear phone to the opposite parties. The Bench of the National Lok Adalat proposed the opposite parties to settle the dispute on payment of Rs.2,000/- (Rupees two thousand) only by the complainant but the complainant did not agree to pay the same. Therefore, the amicable settlement failed and the record of the case returned to the regular Bench.
Admittedly the charger and ear phone of the mobile in question was not returned by the complainant as such the demand of opposite parties of Rs.2,000/- (Rupees two thousand) only cannot be termed as unjustified.
Thereafter, the opposite party nos.1 and 3 filed supplementary evidence in this case. It appears from the record that on 08.06.2022 the complainant submitted her evidence on affidavit. It further appears form order no.8 dated 20.10.2022 that the representative of opposite party no.1 handed over the mobile to complainant after its repair and the complainant returned the Loaner mobile set to the opposite party no.1. Till date the mobile in question is under the custody of the complainant. There is no evidence on record to come to a conclusion that the mobile in question which was handed over to the complainant on 20.10.2022 after repair is not working properly. No complaint was lodged with opposite party no.1 for the alleged defect neither the complainant produced the mobile before the Commission in support of her allegation.
In course of the proceedings of the case the opposite parties volunteered to provide a new mobile with new warranty period of same configuration to the complainant which the complainant deliberately not accepted.
Having considered the elaborate discussion made above, we are of opinion that though the complainant a consumer in terms of the Consumer Protection Act, 2019 but there is no cause of action to file the case.
The complainant is not entitled to get any relief as prayed for.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest with cost.
Dictated and corrected by me
…......................
President
