Xiaomi Technology V/S Gagandeep Dhawan - Consumer Court Case

Punjab

Tarn Taran

CC/29/2021

Gagandeep Dhawan - Complainant(s)

Versus

Xiaomi Technology - Opp.Party(s)

Sumant Tuteja

20 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,ROOM NO. 208

DISTRICT ADMINISTRATIVE COMPLEX TARN TARAN

Complaint Case No. CC/29/2021

( Date of Filing : 26 May 2021 )

1. Gagandeep Dhawan

Gagandeep Dhawan S/o Late Shri Avinash Chander, aged about 29 years, R/o H.No. D-7/6144, Adarsh Nagar, Islamabad, Amritsar

...........Complainant(s)

Versus

1. Xiaomi Technology

Xiaomi Technology India Pvt. Ltd., through its M.D/Director/Authorized Officer, 5th Floor, Block Delta, B-Block, Embassy Tech Square, Inside CESSNA Business Park, Marathahalli, Outer Ring Road, Kadubeesanhalli, Vathur Hobli, Bangalore-560103

2. M/s AHD Commnications

M/s AHD Communications, 1st Floor, Bhai Ghaniyqan Market, Near Bus Stand, G.T. Road, Amritsar

3. M/s Chandigarh Mobile Care

M/s Chandigarh Mobile Care, through its Partner/Proprietor, Tehsil Bazar, Bibo Shah Market, Tarn Taran

............Opp.Party(s)

BEFORE:
	Sh.Charanjit Singh PRESIDENT
	Mrs.Nidhi Verma MEMBER
	SH.V.P.S.Saini MEMBER

PRESENT:

For the complainant Sh. Sumit Tuteja Advocate

......for the Complainant

For the OP No. 1 Sh. Nitin Sharma Advocate
For OP No. 2 Exparte
For OP NO. 3 Sh. M.P. Arora Advocate

......for the Opp. Party

Dated : 20 Jun 2023

Final Order / Judgement

PER:

Charanjit Singh, President;

1 The complainant has filed the present complaint under Section 35 and 38 of the Consumer Protection Act (herein after called as 'the Act') against the opposite parties by alleging that the complainant has purchased one MI 10 (5G) Mobile Phone, bearing IEMI No. 961388040577634 from the opposite party No. 3 vide invoice No. 2038 dated 1.3.2021 for Rs. 55,000/-. The said mobile phone is manufactured by opposite party No. 1 and the opposite party No. 2 is authorized service center for the repair works and service of products manufactured by opposite party No. 1. After one month of the purchase of the above said mobile phone, the complainant noticed that the ear speaker volume of the said mobile phone was quite low and due to which the complainant was facing a lot of problem while attending the phone calls and in this respect, the complainant took the said mobile phone to the opposite party No. 2, the authorized service center for the products manufactured by opposite party No. 1 and told them about the above said speaker volume problem. The technician of the opposite party No. 2 thoroughly inspected the said mobile phone, followed various diagnostic procedures and then came to a conclusion that there is some problem in ear speaker. The opposite party No.2 kept the said mobile phone with them for its repair and in this respect, the opposite party No.2 issued one Job Sheet No.WXIN2104200003830 dated 20.4.2021 to the complainant and assured to deliver the said mobile to the complainant after its repair on 22.04.2021. It was told by the technician of the opposite party No.2 that the faulty speaker will be replaced with new one. On 22.04.2021, the complainant approached the opposite party No.2 to collect his mobile phone. The representative of the opposite party No.2 handed over the said mobile phone to the complainant but there were various scratches on the mobile phone of the complainant, around the front speaker grill, which have been developed while changing the said speaker/ speaker grill. The complainant was also shocked to see that the speaker/speaker grill installed in the said mobile phone of the complainant actually does not fit to said make and the speaker grill of some other phone has been installed in the mobile phone of the complainant. After a couple of days the same problem of low ear speaker volume prescribed and the complainant again took the said mobile phone to OP No. 2 and explained the problem to the executive that attended him. The concerned executive again checked the mobile phone and found out that the earphone volume is low. The said mobile phone of the complainant was again kept by OP No. 2 for further repairs. On 27/28 April 2021, the complainant got a call from OP No. 2 that the approval for change of body and repair of receiver was rejected by the higher authorities and now the complainant has to pay for the repair work. The complainant took back his unrepaired/ faulty mobile phone from OP No. 2 on 30.4.2021 after handing over an affidavit to OP No. 2 as the complainant had misplaced the hard copy of Job Sheet issued by OP No. 2. The value of the said mobile phone has also been diminished very badly due to scratches caused on the said mobile phone by the opposite party NO. 2 and as such, the complainant requested the opposite party No.2 to replace the entire body of the mobile in question, but the representative of the opposite party No.2 flatly refused to replace the body of the mobile in question, when they have themselves put scratches to the mobile phone of the complainant. Moreover, OP No. 2 have also installed speaker grill of some other mobile phone in the mobile phone of the complainant, which can be easily noticed with naked eye. The complainant has spent a huge amount on the mobile phone in question, which turned out to be an unreliable product of the opposite party No.1 and as such, the complainant has lost his faith upon the products of the opposite party No.1. The complainant has many a times approached the opposite parties and requested to take back the mobile phone in question and to repay the amount of Rs.55000/- to him, but the opposite parties did not pay any heed to the genuine requests of the complainant, due to which complainant has faced a lot of mental tension, pain, agony and harassment and now the complainant has also brought another mobile phone for his usage as mobile phone is a necessity device these days and the complainant could not rely on the above mentioned mobile phone any further. Based on the facts as narrated above, it is submitted that the opposite parties are guilty of rendering deficient services to the complainant and they have miserably failed in discharging their responsibilities at the time opposite parties No.1 of transaction. The opposite & 2 have failed in providing such services as were assured and promised by them to the complainant by their authorized dealer and it would not be out of place to mention over here that they have actually indulged in unfair trade practices. The complainant is still suffering a lot of mental tension, pain, agony and harassment on account of deficiency in service on the part of opposite parties. The complainant has prayed that the opposite parties may kindly be ordered to refund the amount of Rs.55,000/- the cost of mobile phone in question to the complainant alongwith interest @ 18% per annum w.e.f. 1.3.2021 till its realization alongwith Rs. 1,00,000/- as compensation and Rs. 22,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record copy of invoice Ex. C-1, photo copy of Job sheet Ex. C-2, Copy of affidavit for loss of second job sheet Ex. C-3, photocopies of photographs of said defective mobile phone Ex. C-4, Self attested copy of affidavit of complainant Ex. CW1/1.

2 Notice of this complaint was issued to the opposite parties and opposite party No. 1 appeared through counsel land filed written version by interalia pleadings that Xiaomi Technology India Private Limited, in the present matter is Opposite Party No. 1 respectfully submits that Mr. Gagandeep Dhawan in the instant complaint has invalidated warranty provisions associated with the Product. The warranty terms were invalidated by his own acts i.e., customer induced damages to the Product. The nature of damages itself reflects that the Product was mishandled by the complainant and it is due to such mishandling that the Product has suffered damages. Therefore, the complainant cannot baselessly allege Opposite Party No. 1 to be liable for deficiency of services. The warranty provisions associated with the Product clearly excludes such damages from free of cost repairs. Therefore, the complainant is solely liable for damages to the handset and the Opposite Party No. 1 may not be held with deficiency of service. The complainant has, apart from baseless and unsubstantiated allegations against the Opposite Party No. 1, not presented any evidence/proof such as technical report from a reputed technical laboratory to demonstrate that the customer induced / physical damage occurred to the Product is a consequence of a defect in the Product and not a consequence of use or mishandling by the complainant. Therefore, the complainant has no cause of action against the Opposite Party No. 1. The complainant has approached the Opposite Party No. 1 twice wherein on first occasion the complainant's handset was duly repaired for free of cost as per applicable warranty terms & conditions and on second occasion due to the complainant's own conduct the Opposite Party No. 1 or any of its agents were precluded from repairing the handset as the handset was diagnosed with customer induced / physical damage - a damage invalidating the warranty terms applicable to the handset, and the complainant refused to pay the repair cost. Therefore, it is clear that the Opposite Party No. 1 has honoured all of its obligations towards the complainant in an utmost manner by way of efficient after sales service. The complaint is not maintainable and merits dismissal at the earliest stage to various reasons, which includes but not limited to (i) the complainant has damaged the Product to such an extent that the warranty applicable to the Product stands invalidated; (ii) the opposite party No. 1 has provided an efficient after sales service to the complainant; (iii) the complainant has not provided any evidence by way of a technical report from a technical laboratory to establish that the handset is presently suffering from a manufacturing defect and (iv) that such defect is not a consequence of mishandling of the Product. The complainant has failed which The Opposite Party No. 1 is a company incorporated under the Companies Act 2013 having its principal place of business at Building Orchid, Block E, Embassy Tech Village, Marathahalli Sarjapur Outer Ring Road, Devarabisanahalli, Bengaluru, Karnataka - 560103. The Opposite Party No. 1 is engaged in the marketing, sale and service inter alia of mobile phones, televisions and other electronic gadgets in India under the brands "Mi", "Redmi", "Poco" and "Xiaomi". The Opposite Party No. 2 is an authorised service centre of the Respondent No. 1. The Opposite Party No. is a seller of the Product. The Complainant, Mr. Gagandeep Dhawan has purchased a handset ("Product") sold under the Mi and Redmi brand namely Mi 10 on March 01, 2021 bearing IMEI No. 861388040577634 for Rs. 55,000/-. All Mi, Redmi, Poco and Xiaomi brand mobile phones sold within India are sold under a standard set of warranty terms and conditions. Said warranty terms are the specific and limited warranty terms CHA offered in connection with all Mi, Redmi, Poco and Xiaomi brand phones sold within India, including the Product purchased by and delivered to the Complainant. On April 20, 2021, the Complainant approached the opposite party No. 2 authorised service centre of opposite party No. 1) for the first time with issues related to the Product. The complainant informed the technician of the authorized service centre of the opposite party No. 1 that the complainant was facing issue related to the Product. The service engineer duly recorded the issue and requested the Complainant to wait until the examination / inspection is completed. After examining and reviewing the Product at the service centre, the defects related to the Product was duly repaired for free of cost as per warranty provisions by the technicians of the authorised service centre of the opposite party No. 1 as per the standard applicable warranty conditions and the Product was duly returned to the complainant in proper working condition as can be ascertain from service job sheet no. WXIN2104200003830. On April 26, 2021, the Complainant again approached the opposite party No. 2 (authorised service centre of opposite party No. 1) with issues related to the Product. The complainant informed the technician of the authorized service centre of the opposite party No. 1 that the complainant was facing issue related to the Product. The service engineer duly recorded the issue and requested the complainant to wait until the examination/inspection is completed. After examining and reviewing the Product at the service centre, it was ascertained that there were multiple scratches on the display of the Product and the Net of the front speaker was damaged at the hands of the complainant, in technical term which is called customer induced physical damage (00W/CID). The technician of the authorised service centre of the opposite party No. 1 duly informed the complainant about the customer induced /physical damage in the Product and also requested the complainant to pay the repair costs, since, any customer induced / physical damage is not covered under standard warranty terms & conditions applicable to the Product. The complainant however, refused to pay the repair costs and the Product was duly returned to the complainant without repair. The Opposite Party No. 1 subsequently received a copy of the present Complaint, alleging that:

(i) The opposite party No. 1 has exhibited deficiency of service and unfair trade practice and has caused harassment and mental agony to the complainant;

(ii) The complainant therefore believes that the complainant is entitled to receive refund of cost of the Product along with compensation and litigation expenses.

The opposite party No. 1 respectfully submits that all Xiaomi, Mi, Poco and Redmi come with a limited warranty, which in certain events or on the occurrence of which, gets invalidated. A copy of such warranty terms is mandatorily provided with the product packaging to all its customers. The Respondent No. 1 refers to Annexure A of the present pleadings, wherein the warranty applicable to the Product clearly states:

"The Limited Warranty starts from the day the customer receives the product, limited to 10 days from the date of invoice.

During the warranty period, if any accessory defect is inspected and confirmed by Xiaomi authorized service centre, free replacement service shall be provided.

1 This limited warranty is only valid in India, and the product is not eligible for any international warranty service. To the fullest extent permitted by law, warranty service only be performed by Xiaomi or Xiaomi authorized service centres.

2. Xiaomi may conduct diagnostic tests on customers' products to identify the causes of failure/defects. Before returning any unit for service, customer should back up data and remove any confidential and/or personal information from the product. Xiaomi is not responsible for damage or loss of any program, data, or removable storage media.

3. Prior to contact Xiaomi service agent, please ensure the following information is at hand:

- Model, serial number, and IMEI number if available. -Customer's full address and contact information.

-Purchase order number, a copy of the customer's original invoice/receipt.

4 This warranty does not cover the following cases:

-If the product serial number, IMEI number or warranty seal is illegible or has been removed, erased, defaced, altered, and/or tampered. If any accessory or external part of the product is missing;

-If 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 attachment:

- General maintenance, password reset assistance, cleaning, application update/installation, product demonstration, or any other service other than repair/replacement;

- Deterioration of the product caused by normal wearing and tearing, including but not limited to rust or stains;

-Any other circumstances that are contradictory or are not in compliance with business ethics."

Further, the opposite party No. 1 refers to Annexure A of the present pleadings, wherein at paragraph no. 5 the warranty applicable to the Product clearly states:

"Xiaomi will determine whether a Product is "Out of Warranty" at the company's discretion according to the below listed standards. Repair of Out of Warranty Products shall be separately quoted by the Xiaomi service centre and respective service shall be provided upon service fee payment...

-Violation of any warranty terms, invalidate warranty, expired warranty, or other reason.

-During the warranty period, in the event of violation which is defined as customer induced, such as self-repairs, exposure to water, damage caused by misuse alternation, failure to comply with the Product manual, etc....."

There is no deficiency of service on the part of the opposite party No. 1 or any of its agents as the complainant approached the authorized service centre of the opposite party No. 1 twice wherein on first occasion, the Complainant's Product was duly repaired for free of cost and returned in proper working condition. Thereafter, on the second occasion, after examining and reviewing the Product, the complainant was duly informed by the authorized service centre of the opposite party No. 1 that the display of the Product was damaged at the hands of the complainants and that is a customer induced/physical damage caused to the Product and requested to pay the estimated costs for repair since any kind of customer induced/physical damage is not covered under the warranty terms and conditions applicable to the Product. The complainant however, refused to pay the repair costs and the Product was duly returned to the complainants without repair. Additionally, the warranty terms and conditions applicable to the Product clearly states that if the Product suffers customer induced /physical damage at the hands of the complainant, the Product will automatically be held to be "Out of Warranty". A copy of the same warranty terms as available at the opposite party No. 1’s website

3 Opposite party No. 3 appeared through counsel land filed written version by interalia pleadings that the present complaint is wholly misconceived, groundless and unsustainable in the eyes of law as the present complaint is bad for mis-joinder or Non-Joinder of necessary parties. The complainant has filed the complaint in order to harass and blackmail the Opposite Party No. 3 as the Opposite Party 3 is not necessary party to the present complaint. The complaint is abuse of process of law and is untenable against the answering opposite party. The opposite party No. 3 i.e. M/s Chandigarh Mobile Care is dealer/retailer of mobile phones and is involved in the business of selling mobile phones of various companies and dealer/seller is not responsible to repair mobile Phones during warranty period nor is liable to replace mobile phones. If any defect occurs to mobiles, it is the service centre of the manufacturing company, that is under obligation to repair Mobile phone for warranty period, that is 1 year from the date of purchase of mobile phone by the customer and further if there arises any manufacturing defects to mobiles, it is the manufacturer, that is under obligation to replace the mobile. So, the liability if any, is entirely that of manufacturer and its service centers and no liability could have been saddled on the dealer. In case the dealer/seller repairs any mobile phone by himself, then the warranty given by the concerned company gets expired so it is beneficial repair for customer to get the mobile from service centre of the company concerned during warranty period. The mobile phone involved in the present complaint is of Xiaomi company and the Xiaomi Company or its service centre is solely liable to repair the mobile during warranty period mobile, if there exists or to replace the any manufacturing defect in a mobile phone of the company. The complainant has no cause of action against the opposite party No. 3 as opposite party 3 i.e. M/S Chandigarh Mobile Care is not liable to repair the mobile set or replace the same within the warranty period. It is very clearly written on the every bill memo that the warranty will be provided by the concerned company of the mobile phones & not dealer i.e. M/S Chandigarh Mobile Care. The conditions inscribed on the every bill cash memo are as under, “The warranty of any Mobile set will be provided by the Service centre of the company concerned but not by our shop". The opposite party No. 3 has sold the mobile phone, which is in conformity with the warranty given by the mobile manufacturer and it was handed over to the customer/complainant after examined by the Customer at the time of the sale. So if any defects occurred thereafter with in the warranty period, it is the duty of the company concerned or its service centre to repair or replace the mobile phone. The complaint is not maintainable before this Commission as the complainant has not approached this commission with clean hands and has suppressed material facts. The amount of compensation claimed in the present complaint is very excessive and exaggerated and without any basis. This commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as such as it is not a consumer dispute and does not fall within the ambit of the Consumer Protection Act, 2019. The opposite party No. 3 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version the opposite party No. 3 has placed on record affidavit of Rajbir Singh Ex. OP-3/3, documents Ex. OP3/1, Ex. OP3/2.

4 Notice of this complaint was sent to the opposite party No. 2 but no one appeared on behalf of opposite party No. 2 and consequently, the opposite party No. 2 was proceeded against exparte.

5 We have heard the Ld. counsel for complainant, opposite parties No. 1 and 3 and have also carefully gone through the evidence and documents on the file.

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

In the instant case, the mobile in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

7 The purchaser never expected that a brand new mobile would have inherent defects from the very beginning. The replacement of parts at the very first instance creates a shadow of doubt on the mechanism of the mobile and this fact is sufficient to hold that it was a manufacturing defect in the mobile.

8 Any consumer would like to purchase a brand new mobile just to avoid any unnecessary hardship and inconvenience, so that the said mobile may work properly at least for a minimum period of two three years from its purchase.

9 It is also relevant to mention that the model of the mobile changes from time to time and new variants are being manufactured by the Companies. Therefore, the replacement of the mobile after such a long period of expiry of 2 years will not be practically possible, as the same model of the mobile in dispute may not be available with the Company and the price of mobile might have been increased. Even no useful purpose would be served by taking expert opinion regarding condition of the mobile after a lapse of a period of 2 years. Therefore, keeping in view the alternative prayer made by the complainant in the complaint, the price of the mobile can be ordered to be refunded to the complainant in the interest of justice. Furthermore during the course of arguments, the complainant has placed on record photo copy of invoice dated 3.8.2022 which shows that the complainant has purchased new mobile from S.S. Ahuja & Co. for Rs. 62,000/-.

10 In view of above discussion, the present complaint is allowed and the opposite party No. 1 is directed to refund Rs. 55,000/- i.e. price of the mobile in question to the complainant. The complainant will hand over the mobile in question to the opposite party No. 1. The complainant has been harassed by the opposite parties for a long time, therefore, the complainant is also entitled to Rs. 7,500/- as compensation on account of harassment and mental agony and 5,000/- litigation expenses from the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.