Karnataka

Bangalore 4th Additional

CC/14/1275

B. Satish - Complainant(s)

Versus

XOLO Mobile - Opp.Party(s)

17 Jan 2018

ORDER

Complaint filed on: 17.07.2014

                                                      Disposed on: 17.01.2018

 

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.1275/2014

DATED THIS THE 17^TH JANUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

B.Satish,

533, 3^rd stage, Basaweshwaranagar, Bengaluru-79.

 

Inperson     

 

V/s

Opposite party/s

Respondent/s:-

 

1. Xolo Mobile,

Chandra Shekar Acharya, Branch Service Manager,

56/3, Vakil Square, Ground

floor, Bannerghatta road, Bengaluru-76.

Near to Airtel corporate office

 

By Advocates

M/s.Purna Law Associates

and Advocates

 

2. A2Z Shopping Ltd.,

no.10, Daryaganj,

New Delhi-110002.

 

3. Shrishti Services,

no.62/B, Ground floor,

10^th main, 4^th block,

Rajajinagar,

Bengaluru-10.

 

Ex-parte

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1, 2 & 3 (herein after referred as Op.no.1, 2 & 3 or Ops) seeking issuance of direction to refund the amount of Rs.13,870/- with 3% interest per month and direct to pay compensation of Rs.75,000/- and also litigation charges Rs.5,000/-.

 

          2. The brief facts of the case of the Complainant are that on 25.08.13, he ordered Xolo Q1000 mobile (herein after referred as handset) from Indiatimes shopping website (a2z shopping ltd.,) and had paid Rs.13,870/- for the same. He got the mobile delivered on 07.09.13 which has a IMEI number as 911310200445113. It is the case of the Complainant that after using the mobile for around 15 days the mobile began to hang, he assumed to be temporary problem but the problem began more worst and the battery backup also began to give problem. Since the problem had become worse, he contacted the customer care centre who advised him to visit the authorized service centre. Complainant further submitted that on 05.10.13, he visited the F1 Info Solutions and services which is in Sampangiramangar, Bengaluru. They tried to reinstall the software from their end so as to resolve this problem but they were not able to do so since they found that the Main Mother Board has a problem and cannot be serviced by them and had to be sent to the factory for repairs. They asked him to collect it after 45 days. During this period a stand by mobile was not provided to him and was left with no mobile to use. The Complainant further stated that after receiving the mobile after 55 days, he started to use and it was OK for another 40 days and again he started to face the same issue. As per the customer care advice, he visited Shrishti Services, Rajajinagar, Bengaluru on 22.02.14 on inspecting the mobile they denied to accept for the service saying the manufacturer seal was broken or tampered.  The Complainant further stated that, when he mentioned of the previous serviced details which the factory had done the repairs they did not accept this reason and had to contact customer care to resolve this issue and finally they accepted for service and tried to reinstall the software from their end so to resolve this problem even they were not able to do so since they also found the same problem with the Main Mother board and again he was asked to collected after 45 days. After 60 days, when he received his mobile, from the day one he is facing following several issues.

(1) The hanging problem has increased more than before and sometimes it becomes so worst that he need to remove the battery to switch off the mobile.

(2) The battery backup has gone from bad to worst

(3) Added to this from past 2 months the charging of the battery is also giving problem after putting the mobile for charging for more than 12 hours, the battery does not get charged more than 30 to 40% because the charging automatically gets stopped after few minutes of charging due to this reason, he is not able to use his mobile and this mobile has just become and toy mobile without any use.

Hence on these grounds and other grounds prays for allowing the complaint.

 

3. On receipt of the notice, Op.no.1 did appear and filed the version. Notice though served on Op.no.2 & 3, they did not appear and hence place ex-parte. The sum and substance of the version of the Op.no.1 are that the complaint filed by the Complainant is misconceived and liable to be dismissed as there is no cause of action for the Complainant file the present complaint. Op.no.1 further submitted that this forum has lack of jurisdiction to try and dispose the matter.  Another specific contention taken by Op.no.1 is that there is no any manufacturing defect in the said handset. Further the Complainant has not at all handed over the said handset to the authorized service centre. It is also the contention of the Op that, the said issue is not manufacturing defect but it is due to various virus attacks. With regard to the battery backup always depends upon usage of the handset by the customer. If the customer browse internet frequently, then automatically the battery backup will be low and there is chance of drain out of the battery. If the customer loaded number of third party applications and uses it frequently then also thee is chance of drain out of battery quickly. Apart from all these facts, if the customer overcharges his battery then also the customer will feel battery problem. The warranty for battery is only six months only. If the customer charges his battery in a wrongful manner then the battery becomes defund and the customer has to change new battery for effective function. Without analyzing the technical aspects, the Complainant is making false as well as baseless allegation that the product is suffering from manufacturing defect and he is entitled for refund or replacement of the product. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and got marked the documents Ex-A1 to A5 and produced one document by filing memo on17.06.17. Branch Service Manager of Op.no.1 filed affidavit evidence and none of the documents got marked. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

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

 

Point no.1: In the Negative.  

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

 

REASONS

 

          7. Point no.1:  At the first instance, we intends to place reliance on the contents of the terms & conditions incorporated under the job sheet marked as Ex-A4 & A5, wherein the condition no.1 reads thus:

1. Warranty of the handset is subject to technical & physical verification at service centre. ‘XOLO’ shall have the sole discretion in rejecting the same, if the handset is not found to be covered under warranty.

 

With reference to this condition, we placed reliance on the contents of para 6 of the affidavit evidence filed by Op.no.1 which reads thus:

I submit the Complainant has approached third party for availing service to his handset before approaching the authorized service center. This fact is clearly admitted by the Complainant in his complaint. As such he is not entitled for free service or free replacement of spare parts. I submit F1 Info Service Pvt. Ltd., is not our authorized service centre. I submit since the Complainant has approached them at the first instance by violating the terms & conditions stipulated in our warranty card, he is not entitled for any service free of cost as well as free replacement of spare parts.

 

8. If the above facts are strictly construed, one thing is clear that the Complainant has approached third party for availing service to his handset before approaching the authorized service center. Who is the third party is concerned, we placed reliance on the contents of Ex-A2, wherein the Complainant has handed over the said handset to the F1 Info Service pvt. ltd., which is not at all be the authorized service center to test or repair the said handset. With regard to the alleged defect in the said handset are hang-up with application and Main Mother board issue, these issues cannot be resolved with software. When F1 Info Service pvt. ltd., is not at all authorized service centre, the contention taken by Op.no.1 at para 6 of affidavit evidence is sustainable.  In this context, we are of the opinion that the Complainant has violated the condition no.1 as stated in Ex-A4 & A5.

          9. With regard to the alleged defect found in the said handset is concerned, there is no technical report. Under such circumstances, the only self-serving sworn testimony by way of filing affidavit by the Complainant is not sustainable in view of decision of Hon’ble National Commission cited by the learned counsel for the Op.no.1 reported in I (2010) CPJ 235 (NC) in the case of Classic Automobiles Vs. Lila Nand Mishra and also another decision of Hon’ble National Commission cited by the learned counsel for the Op.no.1 in Revision Petition no.3973/2012 in the case of Sukhvinder Singh Vs. Classic Automobile & Tata Motors Ltd., The relevant portion of first decision reads thus:

 

Consumer Protection Act, 1986- Sections 2(1)(f), 2(1)(g), 13(1)(c) – Motor Vehicles – manufacturing defects- complaint allowed by forum – Joint and several liability imposed on manufacturer and dealer – manufacturer absolved in appeal – entire liability fixed on dealer – hence revision – Onus to prove manufacturing defect lies on Complainant – No expert evidence produced to prove manufacturing defect in vehicle – alleged defects cannot be termed as manufacturing defect – vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects – manufacturing defects in vehicle not proved – order of lower forum set aside.

 

10. In the instant case as we have already stated above, there is no technical report. Hence the first decision cited by Op.no.1 is supports its stand.  With regard to the 2^nd decision cited by Op.no.1 that ‘only affidavit filed by the Complainant without being any expert report will not substantiate his claim.’ In the light of 2 decisions cited supra, we come to the conclusion that the claim of the Complainant is not sustainable as there is no sufficient evidence to come to the conclusion with regard to the alleged defect.  Accordingly we answered the point no.1 in the negative.

 

11. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed devoid of any merits.

 

          2. If the Complainant deposited the said mobile handset, Office is directed to return the same with proper acknowledgement.

 

          3. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

         

          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 17^th January 2018).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

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

 

Sri.B.Satish, who being the complainant was examined. 

 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Bill dtd.25.08.13
Ex-A2	F1 Info service sheet dtd.05.10.13
Ex-A3 to A5	Op.no.3 service sheet dtd.22.02.14, 17.06.14, 24.06.14
Doc.no.1	Original warranty card for the Xolo 1000 mobile

 

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

 

Sri.Chandrashekar Acharya, who being the Branch Service Manager of Op.no.1 was examined.

Copies of Documents produced on behalf of Opposite party/s

 

-NIL-

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT