Jammu and Kashmir

Jammu

CC/712/2017

BHUSHAN KUMAR - Complainant(s)

Versus

XIAOMI TECH. - Opp.Party(s)

GOURAV SHARMA

06 Oct 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.:              291/DFJ         

 Date of  Institution   :  07-11-2017

 Date of Decision      :    20 -09-2018

 

Bhushan Kumar,

C/O Near India Cake House,

Nawabad Sunjwan,Jammu.

                                                                                                                                                Complainant

          V/S

1.M/S Xiaomi Tech India Pvt.Ltd.

    8^th Floor Tower-1 Umiya Business Bay,Marathahalli-Sarjapur,

Outer Ring Road,Banglore,Karnataka India-560103.

2.Sane Retails Pvt.Ltd.Khasra No.435,Road No.#04,

    Lal Dogra Ext.Mahipalpur,New Dlehi,Delhi,India-110037.

3.Sane Retails Pvt.Ltd.161 G.F.Sector-4,MDC,

    Panchkula,Hariyana-124113.

4. Flipkart.Internet Pvt.Ltd.

    Vaishnavi Summit,No.6/B,7^th Main

   80 Feet Road,3^rd Block Karamangala, Banglore-560034 India.

  5.PSV Solutions,Ist Floor Ext.7,Near Dogra HSS Shastri Nagar,

  Jammu-180004..

                                                                                                                                                      Opposite parties

 

CORAM

                 Khalil Choudhary (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                      Member

                  Mr.Ghulam Sarwar Chauhan                               Member                                         

       

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.Gourav Sharma,Advocate for complainant, present.

Mr.Arvind Khajuria,Advocate for OP1,present.  

Mr.Daleep Bhan,Advocate for  Ops 2, 3&4,present.

    Nemo for OP5.

 

                                                                      ORDER

                     

                             Facts relevant for the disposal of complaint in hand are that; complainant said to have purchased a mobile model MI Note-4 from OP4 on,18-08-2017 for sale consideration of Rs.12,999/ (copy of bill is annexed as Annexure-A).Grievance of complainant is that on,26-09-2017 the handset totally dead in as much as, it got switch off by itself and despite pressing power button the handset would not switch on back, he approached OP5,which is the authorized service centre for the products manufactured and sold by OP1,where he came to know that the actual fault,i.e.Abnormal Launcher Function Power off by App by the attendant named Naresh Kumar the representative of OP5 (Annexure-B).Allegation of complainant is that he was shocked to know through service record sheet  that the handset is out of warranty, but in the service order sheet depicts the expiry date specifically mentioned as 18-08-2018,the OP3 demanded an amount of Rs.8,707.22/-from him for repair the said handset, complainant showed OP5 that the warranty of the handset is one year which is available on the official website of OP1(Annexure-C).Complainant further submitted that on what account they want an amount of Rs.8,707.22/-if the handset is still under warranty and the complainant also mentioned that it is just two months passed he purchased the handset and he never ever approached service centre for repair, but all in vain and OP5 kept on demanding Rs.8,707.22/-and returned the handset without repair. That on,4-10-2017 complainant once again accompanied by his friend approached OP5 and the official of OP5 told him to come after sometime as the instructions of OP1 on email were being awaited by OP5 and OP5 kept on demanding Rs.8,707.22/-when complainant refused to pay such amount,OP5 returned the handset without repair. Constrained by the act of OPs,complainant served legal notice to OP1,4&5,but did not yie3ld any fruitful result. Submission of complainant is that Ops delivered handset which was marred by manufacturing defect, therefore, same constitutes deficiency in service, therefore, prays for refund of cost of handset or in the alternative replacement of handset with a new one and in addition, also prays for compensation and litigation charges to the tune of Rs.30,000/-.

                      On the other hand,OP1 filed written version and while denying the allegation of complainant, went onto submit that there is no deficiency of service or un fair trade practice on its part. That OP2&3 are same entity and is a vendor of products sold by OP1 in India,OP4 is an e-commerce company and the OP5 is an authorized service centre of OP1.The complainant has purchased the phone sold under the Mi brand,namely,the Redmi Note 4 mobile phone for Rs.12,999/-and the said purchase was carried out by the complainant  vide invoice dated 18-08-2017 .That on,03-10-2017 complainant approached authorized service centre of OP1 in connection with defects in the product. The technicians of the authorized service centre of OP1 duly received the product and recorded the issues in the service job sheet No WXIN1710030003586 and provided the job sheet to complainant. After examining the product for defects, it was ascertained that the product had suffered liquid damage. The technicians of the authorized service centre of OP1 duly informed the complainant about the liquid damage in  the product and also requested the complainant to pay repair costs since customer induced damages are not covered under standard warranty terms and conditions applicable to the product. The complainant however refused to pay the repair cost and the product was duly returned to complainant.

                At the same time  Version of OP2&3 is that it is carrying on the business of sale of goods/manufactured/produced by others and is also registered seller on the website Flipcart.Com and sells products of others through the website.

                 Version of OP4 is that it is online market place/platform/technology and facilitate sellers and buyers for completion of transactions.

       Notice was issued to OP5 under registered cover.OP5 despite service of notice failed to file w/v within stipulated period as such its right to file w/v came to be closed by this Forum vide order dated 08-02-2018.

         Complainant adduced evidence by way of duly sworn evidence affidavit and affidavit of   Kewal Kishore. Complainant has placed on record copy of Tax Invoice, copy of service order, copy of service record, copy of warranty statement and copy of legal notice

              On the other hand,OP1 adduced evidence by way of duly sworn evidence affidavit of Mr.Sameer BS Rao Authorised Representative of Xiaomi Technology India Pvt.Ltd.

                         OP2&3 adduced evidence by way of duly sworn evidence affidavit of Mr.S.Mahesh Kumar Authorised Signatory of Sane Retails Pvt.Ltd.

                     OP4 adduced evidence by way of duly sworn evidence affidavit of Mr.Satyajeet Bhattacharya,Authorised Signatory of Flipkart Internet Pvt.Ltd.

 

 

                            Heard Counsel for the complainant. Perused the complaint of complainant written version and considered the evidence and other documentary material on record.

                        To be brief, allegation of complainant is that handset in question was marred by defects and same was deposited by him with OP5,but till date same was not repaired by service centre,therefore,same constitutes deficiency in service. On the otherhand,OP2,3&4, went on to submit that they are retailer and on line business plate form,therefore,they cannot be riddled with the liability for deficiency in service.

                       Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                     Perusal of material evidence would discern that the product with make and model MI Note 4 bearing IEMI No.866255034004484,866255034004492 is purchased by the complainant for an amount of Rs.12,999/-contained as annexure-A.That the evidence adduced by the complainant in his complaint as annexure-B that has been issued by the OP5,who is the authorized service centre of OP1 which never shows that the unit in question suffered with a liquid log whereupon OP5 returned the product to the complainant after super facial inspection without properly repairing and simply says that the unit in question is out of warranty and gave the estimated cost of defective parts amounting to Rs.8,707.22.Perusal would also reveal that the complainant repeatedly visited OP5 to redress his grievance, but all in vain.  It would emerge that OP5 has failed to take any necessary action i.e. repair in the product and knowingly well that the unit of the complainant is within warranty period and only suffering with “abnormal function of the application. It would discern that inattentive and inappropriate action of OP5 has caused affliction upon the complainant besides harassment and financial loss. As a corollary OP5 has failed to discharge his obligation to render sufficient service to the complainant and thus such action on the part of OP5 tentamount to deficiency in service.

                       In so far as, allegation of complainant regarding defects in the handset are concerned and failure of OP5 to remove alleged defects, same went unchallenged from OP5 side.

 

               On the other hand, OP5 despite being duly served, failed to take any action to represent the case in this Forum, either to admit the claim of the complainant or to deny it, so there is no reply filed by OP5 in this complaint and there is also no evidence to rebut the case of the complainant. The present case of the complainant is covered by Section 11 (2) (b) (ii)of the Consumer Protection Act,1987, which provides that in a case where the OP5 omits or fails to take any action to represent the case within the time given by Forum, in that situation the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-Clause (ii) of the Section 11, of Act of 1987, clearly, provides that when OP5 omits or fails to take any action to represent the case before the Forum, the dispute has still to be decided on the basis of the evidence brought to its notice by the complainant.

                      From perusal of the documentary evidence and affidavit filed by complainant, it is found that complainant has succeeded in proving his case, against OP5,despite making repeated requests, therefore, a case is made out by complainant for deficiency in service on the part of OP5,in not redressing his grievance.

 

Therefore, in view of aforesaid discussion, we are of the opinion that the complainant has succeeded in proving deficiency in service on the part of OP5,as such,OP5 is directed to refund cost of handset to the tune of Rs.12,999/.to the complainant, who in turn returned the handset with all accessories to OP5. OP5 is further directed to pay Rs.5,000/-as compensation for mental agony and harassment and litigation charges of Rs.5000/-to the complainant. The awarded amount be deposited in this Forum within one month from the date of receipt of this order. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

     Announced                                          (Khalil Choudhary)                                                20-09-2018                                                                                   (Distt.& Sessions Judge)

 Agreed by                                                                                           President                                                      

                                                                                   (District Consumer Forum)

Ms.Vijay Angral                                                                             Jammu.

Member

 

Mr.Ghulam Sarwar Chauhan

Member