Punjab

Ludhiana

CC/16/795

Ali Hamzaa - Complainant(s)

Versus

Xiaomi India - Opp.Party(s)

Abdul Rashid Adv.

02 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 795 of 17.11.2016

   Date of Decision            :   02.08.2017

 

Ali Hamza son of Sh.Mohd.Zaid, resident of Near Punjab National Bank, Moti Bazar, Malerkotla, District Sangrur.

 

….. Complainant

Versus

1.Xiaomi India,WS Retail Services Pvt. Ltd., Qzone Manay Tech Park, No.56/18, ‘B’ Block, 9^th Floor, Garvebhavipalya, Hosur Road, Bangalore-560068, through its Director.

2.Xiaomi Exclusive, Lally’s Arcade, #B-11/1086/1, Shop No.19,(First Floor) (Near Levies Showroom), Goal Market, Model Town, Ludhiana.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant               :         Sh.Abdul Rashid, Advocate

For OP1                           :         Sh.Sunil Dutt, Advocate

For OP2                           :         Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant purchased MI/Xiaomi mobile phone model VK92921 MI4I-339 Dual Sim in white colour for Rs.9999/- having IMEI No.868139024073881 on 28.10.2015 from OP1 through Flipkart. That mobile phone is having manufacturing defect because it was having no charging, no power  on. Even the power key was not working. Complainant approached the service centre of OP and deposited the mobile phone there on 22.7.2016 against issued job sheet. Expected date of delivery was mentioned on job sheet as 5.8.2016. During visit by the complainant to service centre on 5.8.2016, he found that mobile phone was not ready. Complainant was disclosed as if the mobile phone has been sent to the company for replacement and he should approach the service centre after 15 days. After lapse of that period of 15 days, again complainant visited OPs, but got reply there from as if mobile phone has not been received and complainant should visit after 15 days. Again after lapse of 15 days, complainant visited OPs, but OPs had kept on putting of the matter on one pretext or the other. Complainant had been visiting OPs regularly for fetching his mobile phone, but they failed to repair the same or hand over a new mobile   phone in place of old one. On account of providing deficient service, complainant got served a legal notice dated 12.10.2016 through counsel on Ops for calling upon them to handover the repaired  mobile  handset or the new mobile     handset or to pay price of the mobile phone with interest. OP2 assured complainant that they themselves sent legal notice and job card to OP1. Neither any reply sent to the notice and nor replacement of the mobile phone took place and that is why, this complaint filed for seeking direction to Ops to handover the new mobile phone or to pay amount of Rs.9999/- with interest @18% per annum from the date of purchase of the handset to the complainant. Compensation for deficiency in service and harassment of Rs.50,000/- and damages of Rs.15,000/- more claimed.

2.                 OP2 is ex-parte in this case, but OP1 filed written statement for contesting the claim by claiming that the proper parties have not been impleaded. Rather, Xiami India and WS Retail Services are totally different companies,  running their separate business in individual capacity each. OP1                 company is incorporated under the Companies Act, 1956 and is carrying on the business of sale of goods manufactured/produced by others. It is claimed that the complainant has not approached this Forum with clean hands because he has suppressed the material facts. OP1 is not engaged in selling any goods manufactured or produced by itself. Rather, Xiami India Private Limited is the manufacturer of the mobile phone in question and OP3 is the authorized service centre thereof. There is no relation of principal and agent between OP1 and OP2. Grievance of the complainant pertains to the defects in the product or to the deficiency in service after sale. Liability for removal of defects in the          product rests with the manufacturer, who is not arrayed as party. Only the authorized service centre arrayed as party. No cause of action accrued to the complainant against OP1 and as such, it cannot be fastened with liability. Op1 as re-seller is registered on Flipkart.com. Irrespective of the warranty provided by the manufacturer, OP1 as a goodwill gesture provides services of return/replacement within 30 days of issue or purchase of the product. In case, defects in the purchased product cannot be rectified, then refund sometimes takes place, but within 30 days period. However, in this case, complainant used the product in question for nearly about 9 months and took the same to service centre only on 22.7.2016 and as such, the defects arose after using the product for about 9 months. OP1 has no facility or knowledge for ascertaining as to whether the product in question is defective or has manufacturing defect. Each and every other averment of the complaint denied except that complainant after purchase of the product approached OP2 only on 22.7.2016.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with affidavit Ex.CB of Sh.Mohd. Shakir and documents EX.C1 to Ex.C4 and then his counsel closed the evidence.

4.                 On the other hand, counsel for OP1 tendered in evidence written reply of OP1 and then closed the evidence.

5.                 Written arguments not submitted by any of the parties. Oral arguments by counsel for complainant and counsel for OP1 addressed and those were heard. Records gone through minutely. 

6.                 Ex.C1 is the retail invoice showing as if complainant purchased the mobile phone in question through online order through Flipkart for consideration of Rs.19,998/- on 28.10.2015. Copy of service job sheet Ex.C2 dated 22.7.2016 is produced on record to establish that this mobile phone taken to the service centre i.e. OP2 with problem of “No charging, no power on and power key not working”. Expected date of return mentioned as 5.8.2016 in Ex.C2. So, contents of para no.2 of complaint in this respect is proved by this document Ex.C2.

7.                 Contents of affidavits Ex.CA and Ex.CB further establishes that the complainant visited OP2 on 5.8.2016 for getting back the mobile phone, but OP2 disclosed as if the mobile phone has not received back from company and as such, complainant should visit after period of 15 days. Even after that visit, the mobile phone was not returned to the complainant are the facts borne from the contents of affidavits Ex.CA and Ex.CB. Though promise for return of the mobile phone again made after 15 days, but even after lapse of that period, the mobile phone was not returned back to the complainant as per contents of affidavit Ex.CB. It is on account of this that legal notice Ex.C3 has to be served on Ops by the complainant through postal receipt Ex.C4. So, certainly fault on the part of OP2 is there for not returning the duly repaired mobile phone. For this deficiency in service on the part of OP2, certainly complainant entitled for compensation for mental harassment and agony as well as to litigation expenses and even to return of the duly repaired mobile phone, free of costs.

8.                 OP1 is neither manufacturer and nor the service centre of the manufacturer of the mobile phone in question. Rather, OP1 engaged in the sale of the goods, manufactured or produced by the others. So, certainly submissions advanced by counsel for OP1 has force that as the problems in the mobile phone surfaced after 8 months of its purchase and as such, there was no manufacturing defect in the mobile phone in question. In view of this, liability of OP1 as service provider with respect to the transaction of purchase through online transaction is not there at all. So, complaint against OP1 merits dismissal, but deserves to be allowed against OP2 only.

9.                 Therefore, as a sequel of the above discussion, complaint dismissed against OP1, but same allowed against OP2 by directing him to hand over duly repaired mobile set to complainant within 30 days from the date of receipt of copy of order. Compensation for mental harassment and agony 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 OP2. Payment of these amounts be also made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

10.                         File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                     (G.K.Dhir)

 Member                                                              President

Announced in Open Forum

Dated:02.08.2017

Gurpreet Sharma.