Haryana

Panchkula

CC/113/2015

NAMISH GUPTA. - Complainant(s)

Versus

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

COMPLAINANT IN PERSON.

02 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                         

Consumer Complaint No	:	113 of 2015
Date of Institution	:	18.06.2015
Date of Decision	:	02.11.2015

Namish Gupta s/o Sh.Sushil Gupta, R/o # 204, Sector-12A, Panchkula, Haryana-134115.

                                                                      ….Complainant

Versus

 

1. Xiaomi Technology India Pvt. Ltd, # 8^th floor, Umiya Business Bay Tower-1, Marathahalli-Sarjapur Outer Ring Road, Bangalore-560103, INDIA.
2. Vighnesh Services, # SCO 189-190, Sector-34A, Chandigarh-160034.

                                                        ….Opposite Parties

 

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

 

Before:              Mr.Dharam Pal, President.

            Mrs.Anita Kapoor, Member.

            Mr.S.P. Attri, Member.

 

For the Parties:  Complainant in person.

            Mr.Vipul Sharma, Adv., for the Op No.1.     

            OP No.2 already ex-parte.

           

ORDER

(Dharampal,  President)

 

1. Briefly stated that the complainant purchased a Xiaomi Mi3 mobile phone for an amount of Rs.13,999/- online from flipkart vide bill No.OD40729069389 (Annexure C-1) dated 29.07.2014 which delivered to him on 31.07.2014. On 31.08.2014, the complainant noticed a crack on the mobile’s screen near corner and screen was not working. The complainant was also shocked because he did not drop the mobile or did cause any damage by him. The complainant approached the OP No.2 i.e. authorized service center who told him that this might be occurred due to some pressure. The Op No.2 changed the screen with new one and the complainant paid Rs.6500/- vide bill No.04730030675 (Annexure C-2) but thereafter, within a month, the mobile’s screen again broke itself and the complainant had to buy a Nokia mobile phone for Rs.8,134/- in emergency (Annexure C-3). The complainant again got replaced the screen of his mobile. The complainant issued a notice to Ops explaining his problem through National Consumer helpline but to no avail. This act and conduct of the Ops amounts to deficiency in service on their part. Hence this complaint.
2. OP No.1 appeared and filed written statement by taking some preliminary objections and submitted that the Op No.1 is a company incorporated under the Companies Act, 2013 and was incorporated in India on 07.10.2014 having its principal place of business at 5^th floor, Block Delta, B Block, Embassy Tech Square, Inside Cessna Business Park, Marathahalli Outer Ring Road, Kadubeesanahalli, VarthurHobli, Bangalore-560103. It is submitted that the OP No.1 is engaged in the marketing, sale and service inter alia of mobile phones in India under the brands “Mi” and “Xiaomi”. It is submitted that the OP No.2 is an authorized service center engaged to provide after sales and repair services in connection with mobile phones sold in India. It is submitted that the complainant purchased a Mi3 mobile phone under Mi brand for Rs.13,999/- from the Op No.1’s authorized online retail partner Flipkart Internet Pvt. Ltd. It is submitted that on 18.09.2014, the complainant approached th OP no.2 with complaint and after examination by the service engineer, he was told that the screen of the product was cracked/broken. It is submitted that the service engineer mentioned all the facts in Customer Information Slip No.2826 and also to the complainant which is as under:-

(i)     That the received Product had a dent/crack.

(ii)    That this damage was out of warranty.

(iii)   That repairing this damage would involve an estimated cost of Rs.6,500/- to the complainant.

It is submitted that the mobile phone of the complainant was repaired and returned to him on 24.09.2014. It is submitted that the complainant paid Rs.6500/- for repair of mobile. It is submitted that the terms of warranty is as under:-

    “This warranty does not cover the following cases:-

    …

Any damage occurs in/on outer surface of the product, including but not limited to cracks, dents or scratches on the exterior cases, screens, camera lenses, buttons and other attachments……..”

It is submitted that the damage to the screen is not covered under warranty. It is submitted that the National Consumer helpline is a third party. It is submitted that the complainant alleged that he noticed cracks on 31.08.2014 but he approached the OP No.2 on18.09.2014. It is submitted that the damage to the screen has arisen as a consequence of misuse and mishandling, while in the possession of the complainant. It is submitted that the complainant has not purchased another Nokia mobile in emergency as the bill of Nokia mobile is not in the name of complainant. Thus, there is no deficiency in service on the part of OP No. 1 and prayed for dismissal of the complaint with costs.

3. Notice was issued to Op No.2 through registered AD post. But none has appeared on behalf of the Op No.2. It is deemed to be served and the Op No.2 was proceeded against ex-parte vide order dated 28.07.2015.
4. Rejoinder to the written statement has been filed by the complainant.
5. Replication to the rejoinder has been filed by the counsel for the Op No.1.
6. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith document Annexure C-1 to C-9 and closed the evidence.  On the other hand, OP No.1 has tendered the evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-5 and closed the evidence.
7. We have heard the complainant and learned counsel for the Op No.1 and have also perused the case file as well as written arguments submitted by the Op No.1 minutely and carefully.
8. Purchasing of mobile by the complainant for an amount of Rs.13,999/- through online from flipkart vide bill No.OD40729069389 (Annexure C-1) dated 29.07.2014 which delivered to him on 31.07.2014 is not in dispute.  The grievance of the complainant is that on 31.08.2014 he noticed a crack on the screen near corner and the screen was also not working and when he approached the OP No.2 then it changed the screen of the same with new one and charged Rs.6500/-. It is worthwhile to mention here that the legislation of the CP Act is in generous in nature but it does not give any liberty to anyone to take the shelter of the CP Act for wrong gain. In the present complaint the mobile was purchased on 29.07.2014 and delivered on 31.07.2014 but it is not understandable had the screen of the mobile was damaged and was not working then as to why the complainant kept the same for about one month. Moreover, it is admitted fact that the screen of the mobile was changed with new one and the complainant had paid Rs.6500/- for the same. Had there been any in action/deficiency in service on the part of the Ops then the complainant might have made the payment for the damaged screen under protest. Another surprising factor which this Forum has noticed that as per the version of the complainant he had noticed the damage on the screen on 31.08.2014 but perusal of Annexure R4 reveals that he had approached to the OP No.2 on 18.09.014 and the complainant has failed to explain this lapse. Learned counsel for the Ops has rightly argued that the physical damages are not covered under the warranty terms and the same cannot, by any stretch of imagination, be termed as manufacturing defect.  The terms of warranty is as under:

 

    “This warranty does not cover the following cases:-

    …

Any damage occurs in/on outer surface of the product, including but not limited to cracks, dents or scratches on the exterior cases, screens, camera lenses, buttons and other attachments……..”

 

Since the complainant has got the mobile phone repaired and paid the cost of the damaged screen without any objection which proves that the fault is on the part of the complainant and there is every possibility that the damage to the screen might have arisen as a consequence of misuse and mishandling while it was in the possession of the complainant.  The contentions and assertions raised on behalf of the Ops have weight and are enough to reach at the conclusion that the complaint is nothing and deserves dismissal.   

9.     In view of the above discussion, we are of the opinion   that there is no merit in the compliant and the same is        hereby dismissed leaving the parties to bear their own     costs. Copy of this order be supplied to the parties         free of costs and  and file be consigned to the record    room after due compliance.

 

Announced

02.11.2015

               

                      S.P.ATTRI          ANITA KAPOOR       DHARAM PAL

                       MEMBER              MEMBER              PRESIDENT

 

 

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