Haryana

Panchkula

CC/44/2019

KESHAV . - Complainant(s)

Versus

XIAOMI TECHNOLOGY INDIA PVT.LTD. - Opp.Party(s)

COMPLAINANT IN PERSON

29 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                                       

Consumer Complaint No	:	44 of 2019
Date of Institution	:	15.01.2019
Date of Decision	:	29.10.2019

 

 

Keshav son of Sh. Shyam Sunder, aed 18 years, r/o H.No.545, Village & P.O. Barwala near  New Standard Public School, Barwala, Panchkula. 

 

 

                                                                           ….Complainant

 

Versus

1.     Xiaomi Technology  India Private Ltd., 8^th Floor, Tower-1, Umiya Business Bay, Marathahalli, Sarjapur, Outer Ring Road Banglore, Karnataka, India Pin 560103 through its General Manager.

2.     Savadika Retail Private Limited, 172, Deerwood, Nirvana Counrty, Sector-50, Gurgaon, Haryana India-122001, through its Prop./ Incharge.

3.     Servitronics Solutions Pvt. Ltd. SCO No.11, First Floor, Sector-11, Panchkula Haryana through its authorized  signatory/Incharge.

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh. Shyam Sunder, authorized representative for the complainant. 

                        Ms. Jyoti Rani, Advocate for OP No.1

Sh. Rohit Kumar, Advocate for Op No.2(already ex-parte vide order dated 08.03.2019)

None for OP No.3.

 

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the complainant has purchased online mobile phone at the price  of Rs.4,999/- from OP No.2 bearing Marka Redmi Model No.Redmi 5A), Android version 7.1.2N2G47H vide Tax Invoice No.FABBA21800800311 dated 18.01.2018 with one year warranty. Unfortunately, the above said mobile phone is not working  and showing  the call and problem within  the mobile keyboard  button and on off button. The complainant contacted the OP No.1, he advised the complainant to hand over the mobile phone in the office of OP No.3. After that, the complainant and his father approached to the OP No.3, four-five times and OP No.3 issued a service record/job-sheet dated 28.11.2018 but they have not resolved the problem and they are saying that there is no defect in the phone but after one day the problem of the mobile phone is continue and not working properly. It is submitted that in the above said mobile phone facing the problem to talk with each other and screen of the said is black dark. The complainant contacted to the OP No.1 i.e. head office of Redmi on phone no.1800103286 and on his request, the OP No.1 told to the complainant, they are ordering to your service centre to provide the good services to the him, but the OP no.3 did not paid any heed to the genuine request of complainant. He called the company’s Toll free number 1800 103 6286 several times and recently on 04.01.2019 but all is in vain. Due to the said act and conduct of OPs, the complainant has suffered mental agony, financial loss and harassment. Hence, the present complaint.  

2.             Upon notice OP No.1 appeared through counsel and filed written statement raising preliminary objections that the present complaint is not maintainable. On merits the OP No.1 stated that the complainant  has himself  not provided  any proof  of multiple  visits  other than the visit made on November 28,2018 where the  service centre  of the OP No.1 had duly repaired  the Product and same was delivered  to the complainant in proper working condition, without any charge for services. Further,  the complainant  claims  to have made several calls  to the toll-free number  of the OP No.1, the records of the OP No.1 do  not disclosed  any such toll-free number. The OP No.1 also submitted that the complainant raised no objection at the time of delivery of the product to him clearly implying   that the product was delivered to the complainant in proper working condition. It is further submitted that the complainant also did not provide a fair opportunity to the OPs to examine any further defects in the product by submitting the product for repair and instead directly chose to file the present complaint. If the complainant had submitted the product to any authorized service centre of OP No.1 for any further defects persisting in the product, the OP No.1 authorized service centre would have repaired all the defects in the product or replaced any defective past as per the standard warranty terms and conditions applicable to the product but complainant has not done so. Thus there is no deficiency in service on the part of OP No.1 and prayed for dismissal of the present complaint.

                Notice was issued to the OP No.2 through registered post no. CH036309006IN on 28.01.2019, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of Op No.2, he was proceeded ex-parte by this Forum vide its order dated 08.03.2019.

                Upon notice OP No.3 appeared through counsel and filed written statement raising preliminary objections that complaint is not maintainable. On merits, the learned counsel for OP No.3 stated that the OP No.3 is only the service centre and has no role in selling or manufacture of the mobile. The complainant approached the customer care of the manufacturer and he was advised to visit the service centre but he never visited the service centre. Also, the complainant had approached the service centre only after more than 10 months of purchase for the first time. Further, the complainant only came on 28.11.2018 for the first time and he has not placed on record any expert opinion. The answering OP No.3 had now already closed  the said service centre of Xiomi due to losses and thus have no liability towards the complainant.  

3.             To prove his case, the representative of the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 & Annexure C-2 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R1/A along with document Annexure R-1/1 to R-1/3 and closed the evidence. The ld. counsel for the OP No.3 has also tendered affidavit as Annexure R-3/A and closed the evidence.          

4.             We have heard the authorized representative of the complainant, the learned counsels for the OPs No.1 & 2 and gone through the record minutely and carefully.

5.             It is evident that complainant purchased a mobile set, namely, Marka Redmi Model No. Redmi 5A from OP No.2 vide Tax invoice no.FABBA21800800311 dated 18.01.2018 amounting to Rs.4,999 (Annexure C-1). It is also evident that the said mobile set became defective on account of non functioning of its Keyboard button in proper manner and thus the complainant approached the OP No.3 in connection with the necessary repairs for the removal of defects in the mobile set. It has been contended on behalf of the complainant that the mobile set was returned to the complainant after making necessary repairs in it but the defects were not removed completely and consequently, the complainant and his father approached the OP No.3 several times for getting the mobile set repaired. It is further contended that no heed was paid either by OP No.3 or by OP No.1 despite the complainant’s call on toll free no.1800 103286.

6.             On the other hand, the OP No.1 has denied its liability in the matter stating that the defects in the mobile set were removed on 28.11.2018 during the visit of the complainant by OP No.3. The learned counsel denied the multiple visits of the complainant to the service centre as alleged. It is contended that the mobile set was duly repaired and delivered to the complainant in proper working condition and thus there is no lapse and deficiency on the part of OP No.1.

The learned counsel contended that the complainant is entitled either for repair of the defective parts or replacement of the defective parts within the warranty period. The ld. counsel for the OP No.1 has relied upon the law laid down by Hon’ble Supreme Court in case laws titled as Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644,  in  case titled as Bharat Knitting Vs. D.H.L.Worldwide, (1996) 4 SCC 704, in case titled as Royal Enfield Motors Ltd. Vs. Kulwant Singh Chauhan, (2011) 4 CPR 2018. Reliance has been placed upon judgment passed by the Hon’ble National Commissioner in case titled as Classic automobiles Vs. Lila Mishra & Ors; I(2010) CPJ 235 (NC). Concluding the arguments, the learned counsel denied any manufacturing defect in the mobile set on the ground that the manufacturing defect can only be proved on the basis of  an expert report. It is contended that there is no expert report on record showing that there is any manufacturing defect in the mobile set. In this regard the learned counsel has further relied upon the law laid down by Hon’ble National Commission, New Delhi in case titled as Mahindra & Mahindra Ltd. Vs. B.C.Thakurdesai and Anr., II(1993) CPJ 225(NC).

7.             Sh. Rohit Kumar, Advocate appearing on behalf of the OP No.2  stated that there is no lapse and deficiency on the part of OP No.2 as the mobile set was sent to the complainant in the same condition as it was received  by it from the manufacturer i.e. OP No.1. The learned counsel contended that no liability can be fastened upon the OP No.2, who is seller of the mobile set in question, in case of manufacturing defect. It is contended that the complainant never approached the OP No.2 in connection with the defects in the mobile set in question.

8.             The OP No.3 has denied  the liability in the matter stating that  the defects in the mobile set were removed on 28.11.2018 as is evident from the job-sheet dated 28.11.2018(Annexure C-2). It has been pleaded that the mobile set was delivered to the complainant in the proper working condition. It has been also alleged that OP no.3 is only the service centre and has no role in the selling and manufacturing of the mobile set. It has further been pleaded that the OP No.3 has also closed the said service centre of OP No.1 due to losses and thus have no liability towards the complainant.

9.             Admittedly, the mobile set became defective on 28.11.2018 on account of defect in its physical key less responsive as is evident from the job-sheet dated 28.11.2018(Annexure C-2). The complainant has specifically and categorically alleged in para no.4 of the complaint as corroborated by Para No.4 of the affidavit (Annexure C-A) that the defects in mobile set were not rectified in its entirety and continued to trouble the complainant compelling him to approach the OP No.3 several times. In Para No.5 and 6 of the present complainant as well as affidavit Annexure C-A, we find that the complainant contacted the OP No.1 on phone no.1800 103286. Although, the OPs No.1 and 3 has denied any defect in the mobile set yet in view of the repeated visits of the complainant to OP No.3, we are of the view that the complainant has genuine grievances pertaining to the non functioning of the mobile set.

10.            During the pendency of the case, the OP No.1 has filed an application dated 10.04.2019 praying that the complainant be directed to produce the alleged defective product for examination. Although the complainant has denied the contentions of the aforesaid application moved by the OP No.1 by filing a reply dated 09.05.2019 but he has produced the mobile set in question before us on 15.10.2019 which upon its visual checking was found completely non functional and out of order and thus the same is of no use to the complainant. We are satisfied with the version of the complainant that serious defects in the mobile set still persists and thus the same is of no use for him.

11.           Further, we do not agree with the contention of the learned counsel for the Op No.2 as no written statement supported with affidavits and other documentary evidence controverting the contentions of the complainant has been filed by OP No.2. At this stage it would be relevant to mention here that the said mobile set was procured by the complainant through online from the OP No.2 vide Tax invoice no.FABBA21800800311 (Annexure C-1) dated 18.01.2018. The OP No.2 has neither responded to the notice nor has he opted to controvert the precise cognizable averments made by the complainant having a very relevant bearing upon the adjudication of the grievance, the only distilled view is that the complainant has been able to prove the genuineness of the grievance that the OP No.2 had committed deficiency in service, the manner whereof has been detailed in the complaint, as also the affidavit in support thereof. In view of the aforementioned discussion, we may safely conclude with a reasonable degree of certainty that there has been lapse and deficiency on the part of OPs No.1 & 2.   

12.            In view of the aforementioned facts, we hold that there is lapse and deficiency in service on the part of Ops No.1 & 2 for which they are liable to compensate the complainant jointly and severally. Since the OP No.3 has closed the service centre, hence, we dismiss the complaint qua OP No.3.

.13.           As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund the amount of Rs.4,999/- i.e. the cost price of the mobile set to the complainant along with interest @ 9% per annum from filing of the complaint till its realization.
2. To pay a lump sum amount of Rs.5,000/- to the complainant on account of mental agony, harassment and cost of litigation charges.

 

14.            The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Forum for initiation of proceedings under Section 25 and 27 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:29.10.2019

 

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                                        

President