Punjab

Ludhiana

CC/15/655

Jishu Dhir - Complainant(s)

Versus

WS Retail Services Pvt.Ltd. - Opp.Party(s)

SwatiGupta Adv.

13 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 655 of 03.11.2015

Date of Decision          :   13.12.2016

 

Jishu Dhir aged 29 years, Advocate, Chamber No.5011, Lawyers Chambers Complex Part-II, District Courts, Ludhiana, resident of House No.1133/27/13, 6, Bank Colony, Shivpuri Road, Ludhiana.

….. Complainant

Versus 

1.WS Retail Services Pvt. Ltd., Khasra No.435, Road No.4, Lal Dora Ext., Mahipur, New Delhi-110037, through its Managing Director.

2.Lenovo (India)Pvt.Ltd., Ferns Icon, Level 2, Doddenakundi village, Marathahalli Outer Ring Road, K.R.Puram Hobli, Bangalore 560 037, Karnataka, India, through its Managing Director.

3.Cell Tech India, Authorized Service Station of Lenovo (India) Pvt. Ltd., 24-A, Surya Arcade Complex, National Road, Bhai Bala Chowk, Ludhiana, Punjab, through its Proprietor cum Managing Director Sunil Kumar Verma.

4.Flipkart internet Pvt. Ltd., Ozone Many Tech Park, 56/18 & 55/09, 7^th Floor, Garvebhavipalya, Hosur Road, Bangalore, Karnataka, India, through its Managing Director.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant           :       In person

For OP2                         :       Sh.A.S.Grewal, Advocate

For OP1, OP3 and OP4 :       Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn off unnecessary details, case of the complainant is that he purchased one mobile phone of make Lenovo Model No.A6000 Plus having IMEI No.867124024307811 and second IMEI No.867124024307829 from OP4 through online vide invoice No.de120150400320968 dated 29.4.2015 for Rs.7499/- for personal use. Said mobile was delivered at the residence of complainant on 1.5.2014 (which date in our view is incorrect). Payment was made in cash at the time of delivery. After delivery of the mobile set, when complainant started using the same, he has to face problem in the display of the mobile set because the touch pad was not working properly. As and when, the complainant touched one letter, then several letters used to be typed. As and when any icon of the mobile set was touched, then other icon not required used to open. Even there was problem in the speaker of the mobile set, due to which, the complainant was                          unable to listen to the conversation of the person on the other side of the phone. The mobile set used to hang over in the midway during conversation. Problem of poor camera quality even was faced along with that of heating of the mobile set during routine use. Mobile phone used to go shut off despite full battery backup. There was a problem of software functioning also. In view of this, it is claimed that there is serious manufacturing defect in the mobile set. Complainant lodged complaint with OP2 on 2.5.2015 i.e. within 24 hours of delivery at customer/feedback No.18601803425. On advise of Ops, complainant visited the service centre i.e. OP3, who took the delivery of the handset and asked the complainant to get back the delivery after 2 days. No job card was issued. When the complainant visited Op3 for getting delivery, then he was astonished to see that manufacturing defect has not been rectified/cured. Complainant made number of rounds to OP3 for repair of the mobile set, but OP3 continued to retain the mobile set each time for two to seven days and thereafter, used to return back the set in the same condition. After facing lot of harassment, the complainant served legal notice dated 23.8.2015 for calling upon Ops to replace the defective mobile set and pay compensation for mental harassment of Rs.50,000/-. Vague reply dated 7.9.2015 was received by the complainant. Mobile set was returned to the complainant only on 30.9.2015. But before that, job card dated 17.9.2015 was issued with promise to return back the mobile set after one week. Delivery of the mobile set was taken by the complainant  on 30.9.2015. Even after taking this delivery, defect in the mobile set found to be not removed. It is claimed that Ops have adopted mal-practice and officials of OP3 used filthy language for abusing him and misbehaved with him. Complainant faced difficulty of not attending the calls of his clients because of mal-functioning of the phone. Even reply dated 5.10.2015 from OP4 was received of the notice. Complainant again served legal notice dated 07.10.2015 with the same prayer of replacement and claim for compensation of Rs.50,000/-.

2.                OP1, OP3 and OP4 are ex-parte in this case.

3.                In written statement filed by OP2, it is pleaded interalia as if allegations made in the complaint are false, baseless and this Forum has no territorial jurisdiction to grant the claimed relief as well as that the complainant has concealed the material facts from this Forum; head office of OP2 is at Bangalore, but mobile set was purchased from Delhi and claimed relief is against OP1 or OP2 only. Neither OP1 and nor OP2 have their office at Ludhiana and as such, this Forum alleged to be having no jurisdiction and as such, there is no deficiency in service or adoption of unfair trade practice by Ops. Ops duly honoured the warranty claims and repaired the mobile set, free of cost, due to which, complaint merits dismissal with costs. Even as per contents of the complaint, the authorized service centre of Ops, repaired the mobile set of the complainant free of cost on three occasions as per the terms and conditions of warranty and as such, there is no deficiency in service on the part of Op. It is claimed that the mobile set in question is functioning satisfactorily. Manufacturing defect in the mobile set is not established. Had same been in there, then the defect would not have been rectified. Product cannot be directed to be replaced merely because the same repeatedly brought to the service for minor repair.         Customer satisfaction is the motto of Ops. No problem in mobile set was reported immediately after purchase. Whenever the mobile set taken to the service centre, then job card is generated immediately and that is why, the complainant has been able to produce one job card dated 17.9.2015. First service call was lodged on 23.7.2015 i.e. after three months of purchase of the mobile set. The problem in touch screen was pointed out at that time and the mobile set was duly serviced by upgrading the software. After doing so, the mobile set was returned to the complainant on the same day. As per the terms of warranty, in case, the service provider finds that set is not repairable, then the sole remedy is return of the product from the place of purchase of set or Lenovo to refund purchase           price. Reply dated 7.9.2015 is in fact sent to the legal notice. Admittedly, the mobile set was brought to the service centre on 17.9.2015 also for repair of         the problem in the touch screen. That problem was resolved free of cost under warranty, but work was finished on 21.9.2015 as per service record. Complainant reported problem in camera on 28.9.2015 and said problem was duly rectified on 13.10.2015 and the complainant collected the mobile set. No problem was reported in the mobile set after 28.09.2015 and before that all the problems were duly cured. As manufacturing defect in the mobile set is not there, but due free of cost service used to be provided in term of the required repairs and as such, no cause arises for replacement of the mobile set. Replacement permissible only where   the service provider unable to repair the mobile set. That situation has not arisen. No legal notice dated 7.10.2015 was received by OP.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CW1 along with that of his wife Smt.Swati Dhir, Advocate as Ex.CW2 and documents Ex.C1 to Ex.C15 and thereafter, closed the evidence.

5.                On the other hand, counsel for OP2 tendered in evidence affidavit Ex.RA of Mr.Ronendro Singh, Authorized Representative of OP2 along with documents Ex.OP2/A and Ex.OP2/B and thereafter, closed the evidence.

6.                          Written arguments submitted by the complainant alone, but not by OP2. Oral arguments of complainant and counsel for OP2 heard and records gone through minutely.

7.                Ex.OP2/A is the document showing as if Mr.Ronendro Singh (whose affidavit Ex.RA tendered in evidence) is the authorized representative of OP2. General terms of warranty qua Lenovo product produced on record by  OP2 as Ex.OP2/B, but the complainant tendered in evidence retail invoice Ex.CW1 for proving the fact that the mobile set in question was purchased by him for Rs.7499/- from OP1 through online transaction. This mobile set was delivered to the complainant at Ludhiana is a fact borne from the contents of Ex.CW2 and Ex.C3. As acceptance of the mobile set in question took place by way of delivery of the same to the complainant at Ludhiana and as such, this Forum has territorial jurisdiction because contract was concluded at Ludhiana after receipt of the mobile set.

8.                Job card Ex.C4 shows as if the mobile set in question taken to the service centre on 17.9.2015, but the job card Ex.C11 is replica of Ex.C4 itself. Even this mobile set was taken to the service centre on 28.9.2015 and 23.7.2015 is a  fact revealed by contents of Ex.C13 and Ex.C14. Op2 in the submitted written statement even has admitted that faults pointed out in the touch screen or in the camera of poor quality were rectified free of cost on three occasions. That fact even disclosed by the complainant in his affidavit and in the complaint and as such, virtually on three occasions, free of cost services were provided to the complainant for rectifying the defects. In view of that, deficiency in service on the part of Ops is not there. However, complainant had to suffer by taking the mobile set repeatedly to the service centre and as such, virtually he faced mental harassment and suffering because of taking product on three or four            occasions to the service centre. However, due to that alone inference of manufacturing defect cannot be drawn because manufacturing defect has to be proved by leading cogent and convincing evidence in that respect. Opinion of the expert in this case not obtained for proving the manufacturing defect. Had there been any manufacturing defect in the mobile set in question, then the pointed out defects would not have been cured on all the times, when the complainant approached the service centre of Ops. As the defects stood cured at relevant times, when the mobile set in question taken to the service centre by the complainant even as per the contents of complaint and as such, inference of manufacturing defect cannot be reasonably and probably drawn at all. However, it is claimed by the complainant through complaint as well as his affidavit that defects in the mobile set in question has not been cured till date and as such, liability remain of Ops as manufacturer, dealer and service centre to cure those defects as per the terms and conditions of warranty clauses. Complainant will take his mobile set in question for repair to the service        centre and thereafter, the service centre will make the mobile set functional within 30 days from the date of receipt of mobile set. However, in case, mobile set in question found not repairable by the expert/engineer or concerned technician, then he will report in writing about the same and on such report, Ops will replace the defective mobile set(if found defective) with new one of equal worth of Rs.7499/- with warranty for the unexpired period. Liability of Ops for paying compensation and litigation cost will be joint and several.

9.                Therefore, as a sequel of the above discussion, complaint allowed in terms that Ops will repair the mobile set in question for making the same functional within 30 days from the date of receipt of  defective  mobile set in question from complainant. However, in case the mobile set in question found not repairable by the expert, then the defective mobile set will be replaced with new one of equal worth of Rs.7,499/- with warrantee for the unexpired period. Compensation for mental harassment of Rs.3,000/- (Rupees Three Thousand only) and litigation expenses of Rs.2,000/- (Rupees Two Thousand only) more allowed in favour of complainant and against the Ops. Liability of Ops held as joint and several. Payment of compensation for mental harassment and litigation expenses be made within 30 days from the date of receipt of copy of order. Complainant will submit the mobile set for repair in the service centre concerned within 15 days from the date of receipt of copy of order and thereafter, the same will be repaired within 30 days of receipt thereof. Copies of order be supplied to parties free of costs as per rules.

10.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:13.12.2016

Gurpreet Sharma.