Delhi

North East

CC/37/2016

S.D. Windlesh - Complainant(s)

Versus

Wizard Digitek Computers Pvt. Ltd. - Opp.Party(s)

04 Oct 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. 37/16

 

In the matter of:

		S.D. Windlesh C4/155 Yamuna Vihar Delhi.		Complainant
		Versus
	1.     2.         3.	M/s Wizard Digitek Computers Pvt Ltd C6/232, Yamuna Vihar, Delhi-110053.   M/s Micromax Ltd. 288-A, Udyog Vihar Phase-IV, Gurgaon/Gurugram Haryana-122015   The Incharge/Head of the Unit Micromax Micromax House, 697, Udyog Vihar, Phase-V, Gurgaon-122022.		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		28.01.2016 04.10.2019 04.10.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts, shorn of unnecessary details, giving rise to the present complaint are that the complainant had purchased Micromax Canvas 5 dual SIM mobile Phone bearing IMEI Nos 911457550705040 and 911457550705545 for a sum of  Rs. 12,000/- vide invoice No. WD/5850/2015-16 dated 09.12.2015 from OP1 on assurance given by OP1 that the subject mobile is its latest premium model with excellent features and after sale service and shall be immediately replaced in case of any manufacturing defect therein. However, when the subject mobile stopped working barely within 2-3 days of purchase and started giving heating problem, quick battery discharge issue and voice problem in its microphone when the person from the other side could not hear the complainant’s voice, complainant contacted OP1 which asked him to approach their service centre located at Bhajanpura, Delhi. The complainant visited the said service centre on 22.12.2015 and after having kept waiting for two hours, was told by the Manager of the said service centre that they had no facility to repair the said mobile  and that the complainant should contact the customer care of OP2 regarding replacement of the same. The complainant accordingly contacted OP2 which gave him directions to reset the mobile but the problem in the mobile persisted. The complainant contacted customer care of OP2 again on 30.12.2015 and 05.01.2016 asking them to replace the subject mobile and was assured of its replacement but nothing was done in this regard. Lastly, complainant vide legal notice dated 06.01.2016 through counsel issued to OPs vide e-mail demanded replacement of the subject mobile but the same went unheeded to. Therefore complainant, having no other recourse and feeling aggrieved at the act of the OPs having sold the subject mobile suffering from manufacturing defects feeling cheated, was constrained to file the present complaint before this Forum against the OPs praying for issuance of directions against them to replace the subject mobile with a fresh mobile alongwith compensation of Rs. 25,000/- for loss of reputation faced by the complainant for disconnection of calls while in conversation with other people and any other relief as deemed fit by this Forum.

Complainant has attached copy of purchase invoice of mobile phone dated 09.12.2015 and copy of e-mail legal notice dated 06.01.2016 by complainant to OPs alongwith certificate under Section 65B of Indian Evidence Act in support of the same.

2. Notice was issued to the OPs on 12.02.2016. Despite service of notice on all OPs effected on 04.03.2016, none appeared on behalf of either of the OPs and therefore all OPs were proceeded against ex-parte vide order dated 26.04.2016.
3. Complainant filed ex-parte evidence by way of affidavit exhibiting the documents relied upon in his complaint and in addition placed on record CD of voice recording of telephonic conversation held between himself and executives of service centre of OP2 and OP3 located at Bhajanpura, Delhi on 22.12.2015 and also conversation held with the customer care executives on 30.12.2015 and 05.01.2016. The complainant also filed print outs of online advertisement of Micromax Canvas 5 i.e. subject mobile with features and pricing and online reviews of buyers with negative content / comment about the performance of the said mobile. The said documents as exhibit CW1/1 to CW1/9. The complainant also placed on record copy of the visiting card of M/s Garhwal Communications, ASC of OP2 and OP3 with hand written instructions dated 24.12.2015 by one Mr. Sandeep over leaf mentioning complaint number and customer care number with oral directions to get the subject mobile serviced through online customer care centre.
4. Written arguments were filed by the complainant in reassertion of his grievance against the OPs of non replacement of the defective mobile and failure to provide after sale repair service of a mobile suffering from manufacturing defect which the OPs were aware of yet sold to unsuspecting customers. OP2 and OP3 filed written submission that the complainant had failed to produce terms of warranty on the basis of which he was claiming after sale service from OP2 and OP3 and disputed allegation of deficiency of service or having sold a defective mobile taking the plea of complainant having not filed any documentary evidence by way of report of expert in this regard and prayed for dismissal of the complaint.  
5. In hearing held on 15.05.2018, during preliminary arguments, directions were issued by this Forum to the OPs for replacement of the defective mobile with an upgraded brand new mobile of value of Rs. 15,000/- (approx). However, no efforts were made by the OPs in this regard.             
6. We have heard the arguments addressed by the complainant and have carefully perused the documentary evidence placed on record.

On the basis of the pleadings and documents placed on record, the following points arise for adjudication:

1. Whether the subject mobile was suffering from manufacturing defect and no service provided in terms of after sale and repair
2. Whether there was deficiency of service on the part of OPs in capacity of seller / dealer and manufacturer respectively and if yes, what compensation is complainant entitled to and against whom.

 

As regard the first issue, all the OPs having being proceeded against ex-parte due to their willful non appearance, allegation against them of having sold an inherently defective mobile which did not even last its warranty period and could not be repaired due to non availability of any Authorized Service Centre for the same have all gone unrebutted. Admittedly, the subject mobile manufactured by OP2 and OP3 was sold by OP1. OP2 and OP3 have also failed to rebut the allegation of the complainant that the ASC of OP2 and OP3 when approached by the complainant for repairs of the mobile had refused to repair the same on pretext that the same cannot be repaired in any ASC and complaint for its replacement has to be lodged online only. Therefore both OPs, not having disclosed to the purchaser i.e. the complainant herein that no service centre is available for the subject mobile at the time of selling it have committed wrong and such wrong is deficiency of service and unfair trade practice. The mobile phone carried a warranty of one year but stopped functioning within 3-4 months of its purchase but complainant was made to run from pillar to post i.e. from contacting service centre to customer care of OP2 and OP3 for resolution of his grievance only to be told that his mobile cannot be repaired by any ASC and can only be replaced by online mode of complaint but even that was not done. This again is an act of unfair trade practice. From the evidence placed on record, the deficiency of service on the part of seller and manufacturer of the subject mobile is writ large as OPs failed to either repair or replace the defective mobile without assigning any reason for either of its act of omission. Therefore first issue is accordingly decided in favour of the complainant as against the OPs whom we find guilty of deficiency of service more so in the light of the admitted position that OPs failed to adduce any evidence / defence, thereby admitting the contentions made by the complainant in the pleadings filed before this Forum.

As regard the second issue of quantum of compensation and payable by whom in terms of OPs being in relationship with each other as seller and manufacturer respectively and fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, this contention/ arguments/ defence of OP1 is unsustainable in law and the liability towards the complainant of dealer and manufacturer is joint and several.

The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

In light of the settled proposition of law in apportionment of liability as discussed exhaustively hereinabove, we direct all the OPs jointly and severally to refund the cost of the defective mobile i.e. Rs. 12,000/- to the complainant alongwith compensation of  Rs. 5,000/- towards mental harassment suffered due to failure on the part of OPs to either repair or replace the subject mobile suffering from inherent manufacturing defects. Let the order be complied with by OPs within 30 days from the date of copy of receipt of this order.   

7. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.  File be consigned to record room.
9.  Announced on 04.10.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member