Punjab

Ludhiana

CC/16/509

Raj Kumar - Complainant(s)

Versus

Xiaomi India - Opp.Party(s)

Rajesh Kumar Adv.

12 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                            Complaint No: 509 dated 13.07.2016.                                                             Date of decision: 12.07.2017.             

Raj Kumar Sharma, aged 50 years, son of Sh. Kulwant Rai, resident of House No.B.XX.1706, New Prem Nagar, Near PAU, Ludhiana                                                                                                                ..…Complainant

                                                  Versus

1. Xiaomi India C/o. Ikeva Business Centre, 8^th Floor, Umiya Business Bay Tower 1, Cessna Business Park, Kadubeesanahalli, Marathahalli Sarjapur Outer Ring Road, Bangalor-560103.
2. Xiaomi Exclusive, Lally’s Arcade, No.BII/1096/1, Shop No.19, First Floor, Gole Market, Model Town, Ludhiana.

…..Opposite parties 

                              Complaint under Section 12 of Consumer Protection Act.

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant               :         Sh. Rajesh K. Battish, Advocate.

For OP1                           :         Sh. Ashok Kumar, Advocate.

For OP2                           :         Sh. M.S. Sethi, Advocate.                               

ORDER

PER G.K. Dhir, PRESIDENT

1.                 Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by pleading that he purchased mobile Redmi Note 3 Gold 32GB bearing IMEI No.861375033543582 dated 27.04.2016 for Rs.11,998/- from Amazon India and received the same on 03.05.2016. After using mobile for two weeks, it was found that half of its screen has started blacking out and Wi-Fi disconnects instantly. Problem was brought to the notice of OP2 and then engineer of service centre assured complainant that the manufacturing defects will be removed. Complainant was called upon to come on 03.06.2016, but when he approached OP2 on this date, then the engineer of service centre of OP2 called upon complainant to leave the mobile phone with them and they will remove the manufacturing defect. Complainant was asked to come back on 17.06.2016 and accordingly complainant approached OPs on that date for collecting mobile. However, the defect was not removed by OPs. OP2 demanded more time from complainant by claiming that complainant should visit after 2/3 days. The complainant visited service centre of OP1 on 4/5 occasions, but nothing positive was done. Complainant had been regularly sending emails at the Customer Support Centre of Ops, but no satisfactory reply received.  Complainant claims himself to be a Gazetted Officer working with Government of Punjab and even he claims that entire official correspondence used to be conducted by him on the mobile set in question. Complainant claims to have suffered a lot of mental pain and agony and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to refund Rs.11,998/- with interest @ 12% per annum from the date of filing complaint till payment. Compensation for mental pain and agony of Rs.50,000/- and litigation expenses of Rs.11,000/- more claimed.

2.                 In written reply filed by OP1, it is admitted that complainant purchased mobile phone in question for Rs.11,998/- from OP1 through online transaction. However, it is claimed that all Mi and Xiaomi Brand mobiles are sold in India under a standard set of warranty terms. On 03.06.2016, complainant approached OP2 with complaint regarding problem of display and of Wi-Fi not working. On examination of mobile phone by the service engineer, it was ascertained that the product was facing issue regarding display and Wi-Fi not working. Job sheet in that respect was duly issued. These defects were duly repaired by the technician of OP2 and thereafter, product delivered to complainant without charging anything from him as per terms and conditions of the warranty. Again product was submitted on 02.09.2016 with problem relating to error of playing videos. Service engineer duly recorded the issues in service job sheet and provided job sheet to complainant. OP1 also received copy of complaint of this case, but it is claimed that there is no deficiency in service on the part of OP1 and nor he has adopted any unfair trade practice. Rather OP2 duly received complainant’s product, examined its defects and did the necessary repairs as per terms and conditions of the warranty. Complainant is alleged to have duly collected the repaired product from OP2. Complainant has not produced any evidence for proving the alleged defects to have not occurred due to mishandling of the product. Even manufacturing defect not proved and as such, complainant is not entitled to any relief, particularly when he chose to file the complaint without providing any information about the complaints. Limited warranty is provided for repair or replacement of the defective parts only. Defects in the product are capable of being rectified by repair and as such, demand of replacement of the mobile is not in accordance with the terms and conditions of the warranty. Each and every other averment of the complaint denied and prayer for dismissal of complaint made.

3.                 In separate written reply filed by OP2, it is claimed that complaint is not maintainable because the complainant is not a consumer of OP2 as per provisions of Consumer Protection Act. Besides it is claimed that complaint is bad due to misjoinder of necessary parties because seller namely Cloudtail India Pvt. Ltd. not impleaded as party. Besides it is claimed that if complainant is a Gazetted officer working with Government of Punjab and conducting the entire official correspondence on the mobile, then virtually he is availing services of the mobile for commercial activities, due to which he is not a consumer. As per terms and conditions of the warranty, customer after accepting service job sheet is deemed to have agreed to all terms and conditions mentioned in the job sheet. Complainant has not disclosed that he has received the duly repaired set on 17.06.2016. That fact is not deliberately disclosed. Even complainant has not disclosed the nature of the defects concerning display black half, while playing videos on whats app. No evidence of manufacturing defect is produced. As mobile set is still under warranty and as such, alleged manufacturing defect required to be repaired or replaced by OP1, being manufacturer of the product, but consumer is required to pay the repair charges. Purchase of the mobile set in question by complainant is admitted. However, each and every other averment of complaint denied except that the complainant visited OP2 on 03.06.2016 and was advised to return back on 17.06.2016 for collecting the mobile set after necessary replacement of the parts for repairing the same. Other pleas qua complainant being not consumer are the same as taken in the written statement of OP1.

4.                 Complainant to prove his case tendered in evidence his affidavit Ex. CA along with documents Ex. C1 to Ex. C3 and then he along with his counsel closed evidence.

5.                 On the other hand, Counsel for OP1 tendered in evidence the written statement filed by OP1 only and then closed evidence. However, counsel for OP2 tendered in evidence affidavit Ex. RA/2 of Sh. Kush Srivastava, Associate Manager Legal with HCL Infosystems Ltd. along with documents Ex. R1/2 and Ex. R2/2 and then closed evidence.

6.                 Written arguments not submitted by any of the parties. Oral arguments addressed and those were heard. Records gone through carefully.

7.                 Undisputedly, the mobile in question was purchased by the complainant through online transaction vide invoice Ex. C1. Even if seller Cloudtail India Pvt. Ltd. not impleaded as party, despite that the complaint is maintainable because deficiency in service pleaded against manufacturer and the service centre by claiming that mobile set in question has not been duly repaired for handing over same to complainant. As the repair services to be provided by the service centre on behalf of manufacturer and as such, necessary parties are before this Forum.

8.                 Complainant after purchase of the handset manufactured by OP1 and availing service of service centre namely OP2 on 03.06.2016 through job sheet Ex. C2, certainly became consumer of Ops. Job sheet dated 03.06.2016 is produced on record as Ex. C2 by the complainant, but as Ex. R2/2 by OP2. Expected date of return of the repaired mobile set in question mentioned in Ex. C2 = Ex. R2/2 as 17.06.2016. On Ex. R2/2 a specific note is recorded as if mobile set delivered to customer and signatures of customer are obtained on that stamped endorsed delivery. So certainly submission advanced by counsel for OP2 has force that mobile set deposited on 03.06.2016 by the complainant, was taken back by him on 17.06.2016 after being duly repaired.

9.                 Job sheet Ex. R1/2 of date 19.07.2016 also produced by OP2 to establish that defect of display black half while watching videos etc. was removed and duly repaired mobile set was handed over to complainant on 31.07.2016. Signature of the complainant on the stamped delivery remarks are there on Ex. R1/2 and as such, certainly mobile was taken back by the complainant again on 31.07.2016. Even if that be the position, despite that non mentioning of taking of mobile set to service centre of OP2 on 19.07.2016 in affidavit Ex. CA of complainant of date 30.01.2017 enough to show as if complainant deliberately suppressed the facts regarding repair of the mobile set again in July 2016. That is the deliberate suppression of material facts in this respect by the complainant, but is proved by the contents of job sheet Ex. R1/2.

10.               Job sheet Ex. C3 dated 02.09.2016 also shows as if due to problem of error while displaying video in whats app, mobile was deposited with service centre on 02.09.2016. Expected date of delivery/return mentioned in Ex. C3 as 05.09.2016. Copy of this job sheet of 02.09.2016 has not at all been produced on record by Ops, albeit of the earlier job sheets of 03.06.2016 and 19.07.2016 are produced on record as Ex. R2/1 and Ex. R2/2 by OPs. If really the mobile set deposited on 02.09.2016 with service centre would have been returned back to complainant on 05.09.2016 as contemplated by job sheet Ex. C3, then the remarks of delivery would have been incorporated on foot of Ex. C1 like the one incorporated on foot of Ex. R1/2 and Ex. R2/2. That is not the position and as such, certainly submission advanced by counsel for complainant has force that mobile set is still lying with OP2 in unrepaired condition. Virtually counsel for OP1 or OP2 remained unable to answer to the query as to where the mobile set in question lying after issue of job sheet Ex. C3 on 02.09.2016. However, counsel for complainant asserted that the mobile is lying with OP2 even at present and as such, in view of non record of the endorsement of delivery on Ex. C3, only reasonable inference that can be drawn is that the mobile set is lying with OP2. Error in whats app functioning does not point out to the manufacturing defect because that is the problem of software only.  So in the absence of production on record any expert evidence qua the manufacturing defect in the mobile set in question, complainant has failed to prove that there is any manufacturing defect in the mobile set.

11.               Though it is vehemently contended by counsel for OPs that the set in question as per claim of complainant used for carrying out necessary activities as Punjab Government servant, but same carried out for personal convenience of complainant without charging anything from the persons with whom he is dealing in official capacity and as such, complainant certainly is a consumer of OPs. As Ops have not denied to rectify the defects in warranty period and as such, if they have accepted the mobile with defects during pendency of the complaint as revealed by Ex. C3 and Ex. R1/2 as discussed above and as such, it is not a case of providing deficient services at all. Rather the services offered and even provided on demand of the complainant. However, complainant being owner of the mobile in question after purchase is entitled to return back of the same after due repair thereof by OP2 and as such, only relief to which complainant entitled through this complaint is that he is entitled for return of duly repaired mobile set in question.

12.               As a sequel of above discussion, complaint allowed in terms that OP2 will return the duly repaired mobile set in question to complainant within 15 days from the date of receipt of copy of order. No order as to costs or compensation. Copies of order be supplied to parties fee of costs as per rules. File be indexed and consigned to record room.

 

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

                                         Member                                              President

Announced in Open Forum.

Dated:12.07.2017.

Gobind Ram.