BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.1/2017
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Sri Amlan Jyoti Borgohain - Complainant
S/0 Mrinal Borgohain
Chandmari, Guwahati-3,
District:Kamrup, Assam
-vs-
I) Xiaomi, India -opposite parties
C/O Ikeva Business Centre, 8th Floor,
Uniya Business Bay Tower 1 Cessna Business Part,
Kadubeesanahalli, Marathahalli, Sarjapur
Banglore -560103
II) The proprietor,
A.K.Mobile Point, Lakhtokia,
Guwahati-781001
III) The Manager,
Netsol Associates, G.S.Road,
Bhangagorh, Guwahati-5
Appearance
Learnd advocate Mr.J.P.Kachari for the complainant .
Learned advocate 1) Miss Rumi Deori 2) Sri Amar Jyoti Kakoti
for the opposite parties.
Date of argument:- 10.12.19
Date of judgment: -12.3.20
JUDGMENT
1) This is a case u/s 12 of the Consumer Protection Act, 1986 , where the complainant Amlan Jyoti Borgohain claimed himself to be a consumer u/s 2(d) of the Consumer Protection Act, 1986 and according to him he purchased one smart phone from opposite party No.1 which the manufacturer of the company Xiaomi and he purchased it from A.K.Mobile Point , Opposite party No.2 and Opp.Party No.3 is the branch Manager of the brand’s authorized service centre situated at Bhangagorh , Guwahati.
2) According to the complainant , after purchasing one mobile phone on 7th Nov.2015 at the costing price of Rs.7,100/- he found that after one month the camera of the phone stop functioning . According to him, there was a warranty for one year from the date of purchase. Having such defect he contacted the retail outlet and under his instruction complainant took the phone to the authorized service centre , Netsol Associates , G.S.Road ,Bhangagorh, Guwahati on 21st December,2015 . The phone was left with the opp.party No. 3 for a period of one month and he received back from the said service centre. But same condition continued and ultimately on 22nd June ,2016 he placed back the phone to opp.party No.3 for repairing. The complainant awaited for a month to receive back the repaired phone at the said service centre , but have failed to give the proper answer to the complainant and it was lying for repairing for more than six months in the said service centre.
3) It is therefore submitted that , the smart phone was essential for the complainant who is an engineering student for his regular studies and the defect at delay has caused his loss and suffering and he claim for Rs.1,00,000/-from the opp.party as compensation. Under the above circumstances complainant issued notices upon the opposite parties on 27th Sep.2016 and on reply they have agreed to replace another smart phone to the complainant , but the complainant have already suffered in his educational career and according to him the company have not given the services to its customers to their satisfaction and have not accepted the proposal given by the company and ultimately came out with the present petition for replacement of a new smart phone along with damages for causing harassment and mental agony etc amounting to Rs.1,00,000/-
4) After receipt notice opp.party No. 1 appeared and filed petition praying adjournment and took time for filing adjournment for written statement. Thereafter opp.party No. 2 appeared and filed written statement on 25.7.17. Subsequent to that, the opp.party No. 3 refused to accept the notice and as per order on record dtd. 6.9.17 the case was proceeded exparte against opp.party no.3. Opp.party No. 2 have already filed written statement . Thereafter the case proceeded and complainant have filed evidence on affidavit . Opp.party No.2 have not submitted any evidence and ultimately both the parties have submitted their respective arguments.
5) We have carefully scrutinized the records wherefrom it reveals that complainant undoubtedly purchased smart phone at the cost of Rs.7,100/- on 7th Nov.2015 vide cash memo no. 9344 dtd. 7.11.15. It is proved by the complainant that said smart phone was found defective and placed in custody of opp.party No. 2 on 22nd June. 2016 for repairing and Ex.2 is the supportive documents of the above fact which have been proved by the complainant. The documents produced by the complainant vide Ex.3 and Ex.4 undisputedly proved that there was a dispute between the complainant and the opp.party for selling a smart phone to the complainant which was found defective during the period of warranty. C.W.1 is cross examined by the contesting opp.party no. 2 and no inconsistency of the evidence of the complainant is found. It is admitted by C.W.1 that opp.party No.3 agreed to replace a new mobile handset, but not by opp.party No.2. There was a proposal for the replacement, but virtually the evidence shows that there was no such replacement of any mobile phone to the complainant.
6) The opp.party No.2 were contesting the suit by filing his written statement have categorically mentioned that opp.party No.2 is not the company outlet of the XIAOMI . The present opp.party is the retailer and seller of mobile phone and accessories of various brands which they procured from different authorized distributor. We have gone through Annex.A which is a license from the Municipal authority for dealing with the mobile accessories. It has been claimed in the written statement by opp.party No. 2 that being a retailer of Mobile Handset is not liable from any malfunctioning of the Mobile Handset . After due consideration of the pleading of the party, it appears to us that undisputedly the Mobile Handset was sold to the complainant by opp.party No.2 A.K.Mobile point, Lakhtokia, Guwahati and opp.party No.1 XIOMI India is the manufacturer of the aforesaid Mobile Handset . The record further reveals that the Mobile Handset was placed under custody of opp.party No.3 the authorized service centre for repairing. It is apparent from evidence that proper service was not provided to the complainant and if there is any manufacturing defect it ought to be communicated to the manufacturer by opp.party No.3 the authorized service centre , the required service of repairing and replacement etc at the earliest which has not been done by opp.party No.3. At the same time opp.party No.2 claiming himself to be a retailer cannot shifted his liability by selling a Mobile Handset manufactured by opp.party No.1 where it is claimed that there was a warranty for one year and was found defective after one month of its use.
7) There is no documents to prove by the complainant that there was any warranty period for one year which he admitted during his cross examination, but said statement was not rebutted while cross examined the complainant on oath. However, without proof of warranty we cannot hold a view for replacement of the Mobile Handset , but there was deficiency of service on the part of opp.party No.1,2 & 3 in dealing with the customer even after receipt of notice duly forwarded and due information provided to the seller and the authorized service centre. As such they all are jointly and severally liable for deficiency of service. In the result it is hold that opp.parties are liable for compensation to the amount of Rs.30,000/(Rupees thirty thousand)only to be paid to the complainant within 45 days from the date of receipt of the copy of judgment , failing which interest @ 12% need to be paid from the date of judgment till realiasation.
Given under our hand and seal of the District Forum, Kamrup , this the 11th day of March, 2020.
Member Member President
