Karnataka

Bangalore 4th Additional

CC/14/588

Ravi Kumar Konda - Complainant(s)

Versus

Xolo CustomerCare (Lava International Ltd) and Other - Opp.Party(s)

23 Jul 2018

ORDER

Complaint filed on: 26.03.2014

                                                      Disposed on: 23.07.2018

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.588/2014

DATED THIS THE 23^rd JULY OF 2018

PRESENT

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties directing to reverse Rs.19,200/- for the defective/faulty mobile purchased from XOLO and compensation of Rs.20,000/- for wasting the time which has affected his professional career and personal life since he did not have mobile for more than 26+ (till now mobile is with the service centre only) and not providing responsible service and showing the negligence in service.

2.       The brief facts of the case of the complainant are that he has purchased a XOLO Q 3000 Model Mobile (hereinafter referred as said mobile) for Rs.19,200/- on 14.2.2014 from the 3^rd Opposite Party who is the authorized dealer. After purchasing the said mobile, in 10 days during the usage, he noticed that it has some hardware defects and requested for a replacement of said mobile or reversal of money from the 2^nd Opposite Party and for which they are refusing to replace or reverting the money and not even fixing the hardware issue and not giving back mobile also since 26+ days. Hence, he has given the detailed explanation. Further submits that it is dual SIM mobile in which SIM 1 supports 3G connectivity and has a proximity sensor (the primary function of a proximity sensor is to disable accidental touch events. The most common scenario being the ear coming in contact with the screen and generating touch events, while on a call), but after 6-7 days, he noticed that it is a defective mobile and noticed that the mobile has issues with

1) Proximity sensor not working (during the call, mobile screen will not turn on after taking it to hand from the ear)

2) Network issues in SIM 1 while using 3G services, SIM1’s network drops to Zero/no network suddenly and the SIM1 goes offline for couple of minutes until we restart the mobile.

As an initial step, he called XOLO customer service on the toll free number provided from XOLO and explained the problems which he was facing with the said mobile, they suggested him to perform some initial trouble shooting steps like restarting the mobile etc., which could not resolve the issue he was facing. Later he got the details of XOLO service centre in Bangalore and visited XOLO care which is in Jayanagar 4^th Block, Bangalore on 1.3.2014 (exactly 14 days after the purchase). He visited the 2^nd Opposite Party. After explaining the problems, the XOLO care team of service point informed that the issues are due to software problem and the operating system needs to be re-installed. Since it was just 14 days old mobile, he demanded them for replacing the mobile with a new one. But XOLO care team of service point has told that as per the replacement policy, they can replace any defected mobile only within 7 days of purchase. He requested them for some time for replacement and then decided to submit the mobile at XOLO care since he was left with no other choice. The Complainant further submits that he waited for nearly 2 hours and got his mobile operating system formatted from XOLO care of Service Point, Jayanagar. But after collecting the mobile, he started verifying it for around half an hour to check whether the issues are resolved or not in the XOLO Care (Service Point) and noticed that none of the issues are resolved and shown the problems to the XOLO care team of Service Point.  After reproducing the issues, the Service Point team stated that the mobile has issues with the hardware and it needs to be sent to company head office service which is in Noida, he again requested them for a replacement of the mobile since it is just 14 days old. But they refused saying about the replacement policy which is of 7 days and told that if you want you can submit the mobile or else you can take it back. So he had no other choice other than submitting the mobile in XOLO service centre, they created one more job sheet and collected his mobile and they informed that he would get his mobile within 15 days. Since then he has been calling XOLO care and XOLO care toll free number to get the status update and been listening the same answer saying “It is in company service, we will inform you once it reaches us”. The Complainant further submits that after calling service point so many times and asking them to provide a proper feedback on his mobile, on 20.3.2014, they provided Mr.Jeevithan’s number who is XOLO service manager for Bangalore location. He called Jeevithan atleast 20-25 times on 21.3.2014 and even left a message to know the status of his mobile. But the response was very bad, he always disconnected the Complainant calls. After trying to call continuously, the Complainant was able to reach him on mobile the next day 22.3.2014 and after explaining about the mobile, he asked the Complainant to send the scanned copy of the job sheet given by service point. He always disconnected his calls and failed to update the status of his mobile and after sending him messages again and again, he responded with the same answer i.e. “ It is in company service, we will inform you once it reaches us” and whenever he called the toll free number and asked for the status from them, they always said that they don’t see any update after the job sheet is created. The Complainant had asked Mr. Jeevithan to provide his office address so that he could meet personally and explain the problem, but he didn’t respond to that also, then he had started tracking his details through social networking site face book etc and his profile link is

3. Notice was ordered to the Opposite parties. Inspite of notice duly served on Opposite Parties 2 and 3, they did not appear, hence placed exparte. The 1^st Opposite Party did appear and file the version denying the contents of the complaint filed by the Complainant. The 1^st Opposite Party submits that the complaint is not maintainable due to non-existence of defect in the product. The Complainant has not approached the court with clean hands as well as not disclosed the entire facts before claiming certain relief from Opposite Parties. Infact the Complainant is trying to project that the handset is suffering with too many issues as well as his issue is not resolved properly. The Opposite Party submits that the allegation made in the complaint is existence of hardware problem. In the job sheet, the customer has informed about network issue and sensor problem. The network issue will arise as and when there is drop in signal or week signal or when there is no coverage of signal waves. Under these circumstances, there is a chance for drop in network and same cannot be construed as defect in the product. The network issue has to be addressed by the service provider only. The Complainant has sated he is forced to visit the service centre several times. However, contrary to his statement, the Complainant has produced only one job sheet along with the complaint. This fact itself demonstrates that the Complainant has visited the service centre only once and not many times as contended in the complaint. The Opposite Party-1 submits that on the first visit of the customer, the service centre has forwarded device to company for necessary action. The Opposite Party submits to resolve the display problem as well as sensor problem, the company has replaced PCB for effective function of device and after due observation, it is found that the handset is in good working condition and latter same is dispatched to service centre. The Complainant has purposefully not collected his handset from the service centre even after repeat reminder made to him. This fact is not disclosed by the Complainant as well as this conduct establishes that the customer is not clean in approaching the forum. Inspite of repeat reminder and call made to the customer, the Complainant neglected to collect his handset from the service centre (OP -2).  However, contrary to this background now the Complainant alleges before this Hon’ble Forum there is severe latches on the part of OPs in not delivering his handset as well as he has suffered lot. The OP-1 submits when the customer has failed to collect his handset from the service centre even after several reminders, now alleges mental agony, strain etc., are after though as well as it is set up for the purpose of this case and also to fix false liability against OPs and nothing else. As such on this ground also the complaint is liable to be rejected. The OP-1 denies the allegation of negligent service on their part. There is no deficiency of service from them. As soon as the service centre received the handset from company, immediately the customer is informed about readiness and asked him to collect his handset. When the Complainant himself has neglected to collect his handset now making certain false allegation is nothing but making an attempt to make unlawful gain at the cost of OPs. As such on this count also the complaint is liable to be rejected.  The OP-1 submits before demanding refund of product cost, the Complainant has to establish that the product in question is having repeat repair problem during warranty period. That apart, it is primary obligation of the Complainant to establish that the product in question cannot be repaired under any circumstances. Without complying these basic facts, the Complainant simply seeking refund of mobile cost, which is against the principle laid down by the superior court. The OP-1 submits Hon’ble Supreme Court and NCDRC held if spare part/s can be replaced, then seeking replacement of entire product does not arise. In the present case, PCB is changed free of cost for effective function of handset. It is further submitted Hon’ble Supreme Court as well as NCDRC has held the person who approaches the court has to prove his case by means of cogent independent evidence. In the present situation, the Complainant has alleged that his problem is not resolved and he is unable to use his handset. Infact the Complainant has failed to collect his handset as well as used it before making false allegation against OPs.  The OP-1 submits Hon’ble NCDRC has clearly held that consumer cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the product without any supporting evidence or justification. Hon’ble NCDRC further held that the abandonment of the product soon after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned is not a prudent conduct on the part of the consumer. In the present situation also the customer has abandoned his handset with the service centre even after replacement of part. As such the ratio of principle laid down by the superior forum is clearly applicable to the present complaint also. When the Complainant is not entitled for refund of the product cost itself, question of payment of other relief as claimed in the complaint does not arise. On these grounds and other grounds prays for dismissal of the complaint.  

4.       The complainant to substantiate his case, filed affidavit evidence and produced documents. The 1^st Opposite Party has also filed affidavit evidence. The Complainant has filed written arguments. Heard the learned counsel for the Complainant.

           5. The points that arise for our consideration are:

       1) Whether the Complainant proves the deficiency in service on

            the part of the OPs, if so, whether he is entitled for the relief

            sought for?

        2) What Order?

6.  Our answers to the above points are as under:

Point No.1 : Partly in the affirmative

Point No.2 : As per the final order for the following

REASONS

7. POINT NO.1 :   We have briefly stated the contents of the complaint as well as version of the Opposite Party No.1. Even though the notice was duly served on the Opposite Parties 2 and 3, they did not appear to oppose the claim of the complainant. Under such circumstances, non-appearance/non-filing of the version, amounts to an admission with regard to the grievance of the complainant, in the light of decision reported in 2018 (1) CPR 314 (NC) in the case of M/s Singla Builders & Promoters Ltd., V/s Aman Kumar Garg.

8.       Anyhow in the light of contention taken by the 1^st Opposite Party at Para 6 and 7 of its version, we wanted to dispose this matter with specific direction to the Opposite Parties. For better appreciation, we extract Para 6 and 7 of the version which read thus: 

6.        The OP-1 submits on the first visit of the customer, the service centre has forwarded device to company for necessary action. The OP-1 submits to resolve the display problem as well as sensor problem, the company has replaced PCB for effective function of device and after due observation, it is found that the handset is in good working condition and latter same is dispatched to service centre. OP-1 submits the Complainant has purposefully not collected his handset from the service centre even after repeat reminder made to him. This fact is not disclosed by the Complainant as well as this conduct establishes that the customer is not clean in approaching the Forum.

7.        The OP-1 submits inspite of repeat reminder and call made to the customer, the Complainant neglected to collect his handset from the service centre (OP -2).  However, contrary to this background now the Complainant alleges before this Hon’ble Forum there is severe latches on the part of OPs in not delivering his handset as well as he has suffered lot. The OP-1 submits when the customer has failed to collect his handset from the service centre even after several reminders, now alleges mental agony, strain etc., are after though as well as it is set up for the purpose of this case and also to fix false liability against OPs and nothing else. As such on this ground also the complaint is liable to be rejected.

In respect of attending the grievance of the Complainant, the Opposite Parties submits that to resolve the display problem as well as sensor problem, the company has replaced PCB for effective function of device and after due observation, it is found that the handset is in good working condition and later same is dispatched to service centre. Further submits that the Complainant has purposefully not collected the handset from the service centre even after repeated reminder made to him.   To substantiate this fact, resolving the display problem as well as sensor problem, the company has replaced PCB for effective function of the said mobile, but the 1^st Opposite Party has not produced any documents to show that this fact informed to Complainant. Only the self-serving testimony of the 1^st Opposite Party is not sufficient to come to the conclusion that it had informed to the Complainant to collect the device. Under such circumstances, the decision cited by the 1^st Opposite Party unreported decision of NCDRC in R.P.No.4803/2012 is not applicable.

          9.       We have gone through the written arguments filed by the Complainant wherein at last Para he has submitted that “as of now the Complainant already purchased some other mobile for his usage and at this stage, he cannot get back the mobile from the Opposite Party. Hence, they are liable to pay compensation along with return of mobile charge paid by the Complainant.”  It is settled proposition of law as laid down by the Hon’ble Supreme Court and NCDRC held only spare parts can be replaced, seeking replacement of entire product does not arise. In the instant case, the problem found in the said mobile has been resolved as described in Para 6 of the version. Under such circumstances, if the Opposite Party-2 ordered to handover the said mobile handset to the Complainant within 6 weeks from the date of receipt of this order, we hope ends of justice would meet sufficiently. Further, we direct the Opposite Parties 1 and 3 to coordinate with the 2^nd Opposite Party in handing over the said mobile handset. In respect of the compensation and cost of litigation are concerned, the same are denied as the device has been got repaired and the problem has been solved. Accordingly, this point is answered partly in the affirmative.

10.     POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainant is allowed in part. The 2^nd Opposite Party which is the service centre is directed to handover the repaired XOLO Q 3000 Model Mobile handset in a proper working condition to the Complainant within 6 weeks from the date of receipt of this Order. Further, the Opposite Parties 1 and 3 are also directed to coordinate with the 2^nd Opposite Party in handing over the said mobile handset. Compensation and cost of litigation are denied.

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 23^rd July 2018).

1. Witness examined on behalf of the complainant/s by way of affidavit:

Ravi Kumar Konda., who being the Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

Chandrashekar Acharya, Branch Service Manager, who being the Opposite Party-1 was examined.