DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.763 of 2016
Date of institution: 11.11.2016 Date of decision : 07.02.2018
Lavisha Bansal daughter of Roshan Bansal, resident of # 499, Mamta Enclave, Dhakoli, Zirakpur, District Mohali.
…….Complainant
Versus
1. Xiaomi India, c/o IKeva Business Center, 8th Floor, Umiya Business Bay Tower 1, Cessna Business Park, Kadubeesanahalli, Marathahalli – Sarajpur Outer Ring Road, Bangalore 560103 through its authorised signatory.
2. TVS Electronics Limited, C/o DHL, 4th Floor, Plot No.193-197 & 254-258, 137 & 248-249, Jigani Link Road, Bommasandra Industrial Area, Bangalore-562106 through its authorised signatory.
3. HCL Services Ltd. (Mi Exclusive Center), SCF 118, Phase 3B2, Mohali.
4. HCL Services Ltd (Mi Exclusive Center), SCO 2471-72, Sector 22-C, Chandigarh.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Raghav Kumar, Advocate for complainant.
Shri Vipul Sharma, counsel for OP No.1.
OP Nos,2,3 and 4 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant placed an order of mobile phone Redmi Note 3 Gold 32G with OP No.1, who assured that the mobile to be provided for consideration of Rs.11,999/-, will work effectively. An invoice dated 16.09.2016 in this respect was issued. The said mobile was delivered to complainant on 20.09.2016. The same was found to be defective bcause the sim tray was not coming out. Thereafter, on 21.09.2016 the complainant contacted the customer hotline No.1800 103 6286 for rectification of the defect. Complainant was advised to get the mobile phone repaired at the nearest service center and that is why she took the same on 22.09.2016 to Chandigarh service centre for diagnose of the problem. Officials/service engineer of HCL Services Ltd. disclosed the complainant that the unfriendly defect in the mobile phone is genuine and service record was generated. Said service engineer advised the complainant to get the mobile phone replaced from the company. Thereafter, complainant contacted Customer Care Centre through hotline again on 23.09.2016 with request for replacement. Company confirmed about replacement process on 27.09.2016. Mention of pick up price of mobile phone was made to complainant and mobile was picked up on 28.09.2016 at 6.00 p.m. by Blue Dart Express Ltd. vide courier No.14848749650. Bill for replacement was generated by OP No.2 on 03.10.2016 and the replaced mobile then was delivered to complainant on 05.10.2016 at 6.43 p.m. by Blue Dart Courier vide invoice, the number of which is mentioned in Para No.7 of the complaint. Received replaced mobile phone again was found defective because the display was dead and there were vertical lines displayed on the screen. Even the whole screen was black. Complainant thereafter immediately contacted the customer hotline on 05.10.2016. Complainant was disclosed as if one replacement alone is permissible. So complainant was advised to take the replaced mobile to the service centre for getting the problem diagnosed and accordingly complainant visited Mohali Service Centre on 06.10.2016. Again officials/service engineer of HCL Services Ltd. disclosed about unfriendly defect of mobile phone and they generated service record. Even they disclosed that replacement of mobile can be done by the company only. On contacting through hotline again, complainant was disclosed that the second replacement is not permissible, but repair/service of the same can be got done from the service centre. Matter was taken through e-mail with officials of OPs, but to no effect and that is why this complaint filed by pleading adoption of unfair trade practice for staking claim of deficiency in service on part of OPs. Refund of cost of mobile of Rs.11,999/- alongwith compensation for mental agony and harassment of Rs.80,000/- and litigation expenses of Rs.5,000/- more claimed.
2. OP No.2 to 4 ex-parte in this case, but OP No.1 contested the claim of the complainant by filing reply, where through admitting as if complainant purchased the mobile phone in question for Rs.11,999/.- from OP No.1 through online regarding which invoice dated 17.09.2016 was issued. OP No.2 alleged to be authorised distributor of the product sold by OP No.1. Original product was sold and delivered to complainant as per this written reply. All Mi and Xiaomi brand mobile phones are sold within India under standard set of warranty terms, copy of which allegedly was delivered to complainant alongwith the original product. Admittedly complainant approached the authorised service centre of OP No.1 on 22.09.2016 with issues pertaining to original product and on examination by the service engineer it was found that the original product was facing issues in the sim card holder. Technicians of authorised service centre guided the complainant to get the original product replaced and that is why the same was picked up for replacement by OP No.1 on 28.09.2016. The replaced mobile was delivered to complainant on 05.10.2016. Again complainant reported about the issues in the replaced product on 05.10.2016 and she was advised to visit the service centre for necessary technical examination of the replaced product. After that examination, technicians of authorised service centre guided the complainant to get the product replaced from OP No.1. Thereafter complainant approached OP No.1 with request for replacement and that request was approved by OP No.1 on 09.10.2016 regarding which due intimation was given to complainant. However, complainant refused to accept the replacement offer, but insisted for getting refund. In view of this, allegations of harassment or of adoption of unfair trade practice or of providing deficient services denied one by one each. It is claimed that as per legal position, parties are bound by terms of the contract and in absence of proof of manufacturing defect, sought for refund cannot be allowed.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter evidence of complainant was closed by her authorised representative. On the other hand, counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Sameer BS Rao, authorised representative of OP No.1 and thereafter closed evidence.
4. Written arguments not submitted, but oral arguments heard and records gone through.
5. From the facts admitted in written reply of OP No.1 and contents of invoices Ex.C-2, Ex.C-4 and Ex.C-5 as well as from the email correspondence produced on record as Ex.C-6 alongwith courier receipt Ex.C-3, certainly it is established by complainant that the original product/mobile phone purchased by her on 16.09.2016 (while invoice date as 17.09.2016) was found defective and that is why on the advice of service engineer/officials of service centre, she applied for replacement of mobile phone with new one and the replaced mobile was delivered to her on 05.10.2016. That replaced mobile again was found defective and that is why the complainant entered into further email correspondence with OP No.1. However, as per contents of written reply, offer for replacement made, but delivery of the replaced mobile phone did not take place because of the refusal by complainant to accede to that request. In view of such admissions suffered by OP No.1 in the reply, there remains no escape from the conclusion that actually the replaced mobile phone set delivered to complainant on 05.10.2016, even was defective and that is why she submitted request, on which replacement was agreed, but by rejecting the request for refund of the price amount. As complainant had to approach OP No.1 or its officials or its service centre time and again and as such certainly complainant suffered mental agony and harassment, due to which her confidence/faith in the products of OP No.1 was bound to be shattered. Earlier, OP No.1 through its e-mail correspondence dated 16.10.2016 informed complainant that her request for replacement has been cancelled and as such it is obvious that virtually OP No.1 denied about the request for replacement before filing of this complaint on 11.11.2016. In view of denial of request for replacement, certainly complainant stood harassed and as such only genuine option available with her was for seeking refund of the paid price of the product namely Rs.11,999/-. A person who faced problems in the mobile within 4 days of its receipt and again of the replaced mobile on its receipt itself, definitely would not accept the IInd offer of replacement. As the offer of replacement through written reply submitted late and twice provided product to complainant remained defective on each occasion and as such ends of justice warrant that request of complainant for refund of price of mobile should be accepted, otherwise OP No.1 will keep on harassing the complainant by sending defective replaced mobile time and again.
6. It is contended by counsel for OP No.1 that parent company of Xiaomi mobiles is in China and as such refund of price amount is not permissible. If this submission of counsel for OP No.1 accepted, then this means that manufacturer by having its office or manufacturing place in a country like China will keep on harassing the customer by providing defective mobile hand set. Such harassment certainly amounts to unfair trade practice and as such the genuine request of complainant for refund of paid price deserves to be allowed because the product admittedly was sold by OP No.1 and delivery of the replaced mobile took place on generation of invoice by OP No.1 as disclosed by contents of Ex.C-1 and Ex.C-4 each.
7. Generated service record for date 06.10.2016 of the defective replaced mobile is produced on record as Ex.C-5 and it bears stamp of OP No.3. So OP No.3 and 4 are authrosied service centre of OP No.1. It is admitted by OP No.1 in written reply that OP No.2 is authorised distributor of OP No.1 and as such virtually OP No.1 and 2 remains the principle dealer of product sold to complainant. Being so, both OP No.1 and 2 should be charged with responsibility of refunding the cost price of phone namely Rs.11,999/-, but subject to surrender of defective mobile in question by complainant with any of the OPs. It is so because OP No.3 and 4 are the authorised service centre of OP No.1 and 2 and that is enough to hold that they are bound to accept the defective mobile set for replacement or for other purposes for and on behalf of OP No.1 and 2. So surrender of mobile phone by complainant may be done with any of the OPs. On such surrender of the mobile by complainant with any of the OPs, recipient will inform OP No.1 and 2 about such surrender, so as to pave way for refund of price amount of Rs.11,999/- by OP No.1 and 2 within stipulated period of 40 days from the date of receipt of certified copy of this order provided of course complainant surrender the defective mobile phone with any of the OPs within 7 days from the receipt of certified copy of the order. Complainant also entitled to compensation for mental agony and harassment and litigation expenses but of reasonable amount, which is determined by keeping in view the fact that earlier OP No.1 cooperated by replacing the defective mobile and now again offer for such replacement is given, albeit in the submitted reply in this complaint only.
8. As a sequel of above discussion, complaint allowed with direction to OP No.1 and 2 to refund the cost of phone namely Rs.11,999/- to complainant within 40 days from the date of receipt of certified copy of the order. However, complainant required to surrender the defective mobile phone in question with any of the OPs within 7 days from the date of receipt of certified copy of order. It is only on surrender of this mobile by complainant with any of the OPs that intimation by recipient will be sent to OP No.1 or OP No.2 and thereafter payment will be made by OP No.1 and 2. Compensation for mental harassment and agony of Rs.2,500/- and litigation expenses of Rs.2,500/- more allowed in favour of complainant and against OP No.1 and 2, whose liability is held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Complaint against OP No.3 and 4 is dismissed qua all other aspects except that of receipt of defective mobile.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018.
Announced
February 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
