BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 302 of 2016
Date of Institution : 18.11.2016
Date of Decision : 6.12.2017
Suresh Kumar son of Shri Jagdish Chander, resident of Village Topriya, Tehsil Nohar, District Hanumangarh.
……Complainant.
Versus.
- Zee Mobile Centre, Authorized Dealer Reliance CDMA & GSM Nokia Samsung Sony, I-Ball, office at 14 Palika Bazar, Ellenabad, district Sirsa through its Proprietor/Authorized person/Proprietor/Manager.
- Best IT World (India) Pvt. Limited 87/93 Mistry Industrial Complex, MIDC Cross Road, “A”Andheri (E), Mumbai-400093 through its Authorized person/Chairman.
- I Ball (i . ball) Customer Care/service Centre of the op no.2 company.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…… PRESIDENT
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh. R.K. Saini, Advocate for complainant.
Sh. Abhinav Sharma, Advocate for opposite party no.1.
Sh. Ranvir Singh Rep. for op no.2 however Ops no.2 and 3 already exparte.
ORDER
In brief facts of the case of complainant are that the op no.1 deals in sales of mobiles of I-ball, in the capacity as Authorized dealer of op no.2 and the fact remains that the complainant purchased one mobile set marka I-ball model Cobalt bearing IMEI no. 911404550113569, battery bearing serial no.91140455005245 worth Rs.10900/- against the cash bill no.20976 dated 19.05.2015 which was duly issued and signed by op no.1. At the time of sale of above said mobile set, the op no.1 on behalf of the op no.2 had given guarantee for the period of one year against any defect in the mobile and also fully assured for its replacement if any defect occurred in mobile set much before the expiry of one year i.e. guarantee period. Just after few days of its purchase, the complainant was shocked to detect that the mobile set became defective as the mobile set gone off automatically inspite of the indication of fully charged battery on the display of the mobile set, as such, the mobile set gone useless. On detecting this defect in the mobile set, the complainant alongwith his friend approached the care/service centre of the op no.2 company and complained off the defects therein. On receiving the mobile from complainant, the op no.3of his own checked the mobile set and the op no.2 did the repair work on the said mobile set and they also assured the complainant every time that the defects from the mobile set has been removed and that now the mobile set is quite okay, while the fact remains that the defects in the mobile set has never been removed and the same is still existing in the mobile set. However, the fact remains that due to the manufacturing defect in the mobile set, the said defects in the mobile set could not be removed. It is also submitted that inspite of the fact that after being fully satisfied with the problem as complaint in mobile set due to manufacturing defect therein, the op no.2 put off complainant saying that “Don’t Worry” they would at their own level get replace the mobile set but they failed to do so. It is also submitted that the complainant has also sent the complaint with the ops about the defect in the mobile set vide E-mail message also during the period w.e.f 2.6.2015 to 13.4.2016 and all the complaints have been duly received by the ops but the ops failed to redress the grievance of the complainant and they have knowingly committed the deficiency in service. It is also submitted that it is the legal liability of the ops to redress the grievance of the complainant because the defect in the mobile set has been occurred well within the guarantee period, hence the ops are legally liable for the replacement of the mobile set, but the op did not hear any request of the complainant. however the complainant before filing the complaint also approached the ops and requested for the replacement of the mobile set, but the ops openly stated that “Koi Replacement Nahi Hogi- Jo Karna Hai Kar Lo, Who Rahi Aadalat” and in this manner, while insulting complainant thrown out the defective mobile on the face of the complainant. Due to above said act and conduct, complainant also undergone much mental tension, harassment, humiliation, financial loss, loss of his business circulation, as complainant failed to get benefits of mobile for which purpose he purchased the same, as such besides the replacement of mobile set, the complainant also entitled to compensation of Rs.50,000/- on these counts. The complainant also got sent a legal notice upon the ops through his counsel Shri R.S. Bhambu, Advocate Sirsa which was sent through registered post bearing serial no.RH591340226 IN&RH 591340291 IN dated 30.07.2016 m which must have been duly received by the ops, but the op no.1 did not give any reply to the same, hence complainant has left with no other alternative but to knock door of this court. Hence this complaint.
2. The OP No. 1 & 2 appeared and filed its separate written statement in which they have taken preliminary objections of not maintainable, no cause of action, non-joinder and mis-joinder of necessary and proper parties, suppressed the true and material facts from this Hon’ble Forum, complainant is not the consumer of the ops as defined under the provisions of the Consumer Protection Act, complainant is estopped by his own act and conduct from filing the complaint and this forum has no jurisdiction. It is further submitted by op no.1 that the complainant did not implead the manufacturer as party to the present petition, while the manufacturer is very necessary party to the present petition. On merit, it is submitted that the op sold the mobile set to the complainant being the authorized dealer, but the remaining other contents are wrong and incorrect, hence denied. Moreover, manufacturing company always mention the guarantee/ warrantee conditions on the log book/manual contained in box of mobile set which ought to go through by each customer and the manufacturer also mentioned the list of their authorized Service Centre, which are being run under the control of manufacturing company for providing time to time services to the customers and they also advised to the customers to get their complaint redressed from the authorized service centre, meaning thereby the dealers after selling out the mobile set on behalf of the company, having no interference between the customers and service centre. The answering op never committed any default on its part. If the complainant approached to the answering op, then the answering op would have tried his best to redress the grievance of complainant if any through proper channel. The answering op supplied the set in intact/packed condition without any kinds of tamprament with the sealed box containing the mobile set. Moreover, the complainant did not raise any objection or complaint in this regard at the time of purchased of the mobile. Because the seals of the box and was opened by the complainant and the complainant himself broken out the seals of the box and was opened by the complainant and the complainant himself broken out the seals of the box in order to check out the look and mobile set. Furthermore, it is submitted that any mobile set could occur the fault/defect due to non-use according to instructions, due to causes beyond control of human being like lightening, abnormal voltage, act of God, improper testing, operation, maintenance, installation, adjustments, testation, modification, spills of liquor or substances, curly cards that have been stretched or crimped, damage caused by ancillary equipments used with product/mobile etc., hence it is denied in toto that the alleged defects occurred in set due to any manufacturing defect or any default on the part of answering op, hence the replying op is not liable to replace or repair the set, if there is any fault the same could be detected and removed by authorized centre only. It is further submitted that it is wrong to say that complainant ever approached the answering op with any defect. It is further submitted that the answering op is doing his business on a nominal profit, whereas the customer pre-set their mind to purchase the mobile set after go through the pamphlets, T.V. advertisement, publications etc. and thereafter approached to the dealers and purchased the mobile by brand name and model number. Moreover, the set purchased by the op no.1 from its manufacturer/distributor in a sealed and packed condition and sell out the same as he received from the Distributor/manufacturer on the nominal profit. In the eventuality, if the customer desires to see the outlook of the set, the Dealer always provided the demo-set as well as catalogue, provided by the manufacturer, hence there is no active part between the customer and manufacturer, of op no.1, as such complainant has no cause of action to file the complaint against answering op. It is important to mention here that answering op has never given any guarantee/assurance or warrantee of mobile set to the complainant, as the giving of guarantee/warrantee by answering op does not fall within the criteria of him, hence the question of giving any guarantee/warrantee without having received from manufacturing company, to the complainant, does not arise at all. Moreover, manufacturing company always mentions the guarantee/warrantee conditions on the log book/manual contained in box of mobile set which ought to go through by each customer and the manufacturer also mentioned the list of their authorized service centre, which are being run under the control of manufacturing company for providing time to time services to the customers and they also advised to the customers to get their complaint redressed from the authorized service centre, meaning thereby, the dealers after sale of mobile set on behalf of the company, having no interference between the customers and service centre. However, it is very much clear from the pleadings of the complainant that he never approached the answering op for his grievance, as he no where in his petition has mentioned that he any moment of time approached the answering op. Hence, there is no question of any harassment, humiliation to the complainant by the answering op. The complainant is not entitled to any compensation as there is no fault on the part of answering op. Rather he is liable to be punished, burdened with heavy costs and complaint of the complainant is liable to be dismissed with costs.
Opposite party no.2 in the written statement submitted that from the records of authorized center at Sirsa, it is revealed that mobile handset Andi5Q Cobalt Solus(IMEI no.911404550005245) was duly repaired and lying in our authorized service centre since long as complainant did not take care to collect his duly repaired mobile handset from our authorized centre inspite of intimations. The op no.2 submit that our authorized service centre ARZ Enterprises- Sirsa had requested complainant to collect duly repaired handset. However, as on date complainant has not visited our authorized service centre for collecting the mobile handset due to reason best known to the complainant. It is further submitted that on 16.6.2016 they requested complainant to collect his duly repaired mobile handset from authorized service centre by producing customer receipt. The complainant did not comply with the request of the op no.2. It is further submitted that as per record on 30.09.2015 op had already given replacement to the complainant with same Model Andi5Q Cobalt Solus (IMEI No.911404550005245) However due to oversight and good faith, the staff of op forget to take receive signature of the complainant on the Customer issued slip. The op no.2 further submitted that the complainant has taken disadvantage of the said facts and falsely file present complaint. It is further submitted that the mobile handset of the complainant is out of warranty and as per record, the warranty of the complainant mobile handset was expired on 18.08.2016. The op no.2 submit that after expiry of the warranty period the complainant has filed present complaint. On the ground of the out of warranty the complaint is liable to be dismissed. Hence, considering said facts the op no.2 is liable to be discharged from present complaint or this Hon’ble forum to dismiss the complaint against op no.2. It is further submitted that as per record firstly on 6.6.2015 the complainant visited authorized service centre for the problem of weak battery. The said problem duly rectified and mobile handset returned to complainant. Thereafter, on 20.08.2015 again complainant came with the problem of software update few days from the purchase, the said problem also rectified and returned the mobile handset to complainant. Then on 3rd time ops authorized centre gave replacement of same model on 30.09.2015. Lastly after 7 months later on 05.04.2016 the complainant again visited our service centre. Ops authorized service centre duly rectified all the defects in the mobile handset and requested to complainant to come and collect his duly repaired and workable conditions mobile handset but till date the complainant willfully did not visit ops authorized service centre. The op no.2 deny that there is any manufacturing defect in the mobile handset as alleged. The op no.2 submit that they all the time rectified all the defect in the mobile handset hence denies the allegations of not rectified the defects. At the end, all the facts are denied by op no.2 as submitted by the complainant in his complaint.
3. The parties have led evidence in the form of affidavits and documents. The complainant has tendered Ex. CW1/a-his own supporting affidavit; Ex.C1 bill of mobile, Ex.C2 to Ex.C12 requests to ops, Ex.C13 receipt of customer, Ex.C14 legal notice, Ex.C15 and Ex.C16 postal receipts registered AD, Ex.C4, etc, on the other hand ops did not produce any evidence except affidavit of Sunil Kumar, Proprietor of Zee Mobiles.
4. We have heard Ld. counsel for the parties and have perused the case file carefully.
5. The purchase of mobile by the complainant from the op no.1 is an admitted fact on record. The complainant has filed this complaint with the allegation that his mobile set had become defective as the mobile set gone off automatically inspite of the indication of fully charged battery on the display of the mobile set, as such the mobile set gone useless. The complainant approached the ops to check and repair the mobile set. The op no.3 carried out the repair of the mobile but the defect in the mobile could not be removed as there is manufacturing defect. The complainant sent the message to the manufacturer on e-mail and lodged his complaint qua the manufacturing defect in the mobile. In order to prove his allegation, the complainant has filed an affidavit Ex.CW1/A and proved the documents Ex.C1 bill of mobile, Ex.C2 to Ex.C12 copy of request letters, Ex.C13 job card, Ex.C14 legal notice, Ex.C15 and Ex.C16 postal receipts etc
6. On the other hand, opposite party no.1 who is a dealer of the manufacturing party no.2 had put his appearance through his counsel and filed the written statement. He has taken the plea that being a distributor he use to sale the mobile of the manufacturer/company on the marginal basis, in a sealed/packed condition and only in the same condition are marketed in the market and he is not responsible for the manufacturing defect of the mobile and only manufacturer is liable but he has admitted the sale of the mobile to the complainant. Any mobile set could occur the fault/defect due to non-use according to instructions, due to causes beyond control of human being like lightening, abnormal voltage, act of God, improper testing, operation, maintenance, installation, adjustments, testation, modification, spills of liquor or substances, curly cards that have been stretched or crimped, damage caused by ancillary equipments used with product/mobile etc. etc.
7. In order to prove his defence plea, Sunil Kumar furnished his affidavit Ex.R1 in which he reiterated all the contents of his written statement.
8. The op no.2 put their appearance through their authorized representative and filed their written statement in which they have taken the plea that they had duly repaired the mobile set through their authorized service centre. Their authorized service center called upon the complainant to collect the same but he did not comply with the request of the op no.2 they made reply to the notice of the complainant, the complainant was already given replacement of his mobile with the same make and model on 30.09.2015 but however due to the oversight and good faith the staff of op forget to take signature of the complainant on the Customer issued slip and present hand set is out of warranty.
9. They have denied any manufacturing defect in the mobile hand set as alleged. The op no.2 did not led any evidence despite availing three opportunity including last opportunity rather on the day of last opportunity for the evidence of the ops, representative of the op did not come present to lead any evidence as a result of which, the op no.2 was proceeded against exparte. The op no.3 was also proceeded against exparte on 27.07.2017 as they did not put their appearance even despite service of the notice.
10. The evidence led by the complainant has gone unchallenged and unrebutted against op no.2 and 3 as they did not lead any evidence in order to rebut evidence of the complainant. It is a proved fact on record that the mobile set of the complainant which he had purchased from the op no.1 initially was suffering from a manufacturing defect and the complaint was lodged against the op who after verifying the fact of manufacturing defect gave replacement of the same make and model mobile, however, the replaced mobile set was also not working well and the same also suffered certain defects as alleged by the complainant in his complaint. It is also admission on the part of the op no.2 that they got the second mobile set for repair which is lying since long in their service centre till date and the same has not been handed over to the complainant due to the reason best known to the ops no.2 and 3. Though, the op no.2 has taken the plea that they called upon the complainant to collect his duly repaired mobile set but he did not turn up to collect the same but however the op has failed to prove their plea by leading any cogent and convincing evidence in this regard. Rather they did not lead any evidence even after availing three opportunities and opted to be proceeded against exparte. Meaning thereby, the ops have failed to prove their plea. The warranty of the product has expired while lying the mobile set in the custody of the service centre of the op no.2. It was the legal obligation of the ops to carry out the necessary repair in the mobile set if the same was repairable and hand over the same to the complainant without any loss of time but the ops did not come forward to make this offer of handing over mobile set to the complainant while appearing on different dates before this forum which clearly shows the lapse on the part of the ops which amounts to deficiency of service.
11. In view of the above discussion, we hereby allow this complaint and direct the ops to hand over a new mobile set of the same make and model as replacement of old mobile which is lying in the service centre of the op no.2 without any cost and the ops are also directed to extend the warranty of the mobile for six months or in the alternate to make refund Rs. 9000/-(Rs.10900-1900 as depreciation). We further direct the ops to pay a sum of Rs.1500/- as composite compensation and litigation expenses to the complainant. This order should be complied with by all the ops jointly and severally within a period of 30 days from the date of receipt of this order. A copy of order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated:06.12.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
