DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 30th day of January 2023
Filed on: 22/07/2016
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. NO. 428/2016
Between
COMPLAINANT
Sreehari P., S/o. K.A. Chandrasekharan Nair, Chandra Nivas, (Koothanalil), Thaikkattukara. P.O., Aluva- 683106.
VS
OPPOSITE PARTIES
1. ASUS COMPANY, General Manager, Asus Technology Private Limited, 4C, Gandecha Onclav, Kherani Road, Near Sakinka Police Chowk, Andheri East, Mumbai-400 072, Maharashtra, India.
2. SHOUKKATHALI, PROPRITER, Alif Communication, Penta Menaka, Shop No.131, Shanmugham Road, Ernakulam – 31
3. ASUS SERVICE CENTRE, To The Manager, Asus Service Centre, Kadavanthra, Cheruparambathu Road, Near Lotus Eye Care.
F I N A L O R D E R
D.B.Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. The brief facts, as averred in the complaint, the complainant purchased the mobile phone from the 2nd opposite-party shop. The phone is manufactured by the 1st opposite party. The 3rd opposite party is the service centre of the 1st opposite party. The complainant purchased the mobile phone from the 2nd opposite party on 24.08.2015. The model of the phone is Asus A501CG (51NCG) 16 GB, The 2nd opposite party issued a bill for the same. The phone is manufactured by the 1st opposite party. The complainant began to face problems with the phone from the very beginning. The phone was overheating and the battery charge would last for less than one hour even after fully charged. Consequently, on 27.10.2015 the complainant approached the 3rd opposite party service centre of the 1st opposite party. The 3rd opposite party accepted the phone for repair and returned it a free a week by the 3rd opposite party claiming that they had repaired the phone. However, within a few days, the problem reoccurred and on one occasion the display of the phone began to flicker and there was no display. Consequently, on 21.11.2015, the complainant again gave the phone to the 3rd opposite party for repair. The phone was again returned after a week by the 3rd opposite party claiming to have repaired the same. Even after such repair the problems continued and in month June 2016 the phone became dead and it is refusing to switch on. Consequently, very important data like contacts, photos relating to the work of the complainant- etc stand irretrievably lost. This has caused huge losses and embarrassment to the complainant. The complainant is engaged in fabrication work. The photos relating to those stored in the phone have been lost causing considerable business loss to the complainant. Some customers of the complainant cancelled the work orders worth Rs.50,000/- as the complainant did not attend the calls on time. This has happened because the phone was complaint & contacts were lost more importantly various telephone numbers of the complainant’s clients were also lost leading to huge loss. The phone suffers from manufacturing defects. These defects resulted in the various problems encountered by the complainant while using the phone. The 1st opposite party is liable for manufacturing and supplying such a defective phone. The 2nd opposite party by selling such a defective phone to the complainant is jointly liable with the 1st opposite party for the damages caused to the complainant. The repair and service of the phone by the 3rd opposite party is also deficient and hence the 3rd opposite party is also liable.
The complainant was forced to purchase another mobile phone by incurring huge expenses. The complainant had approached the Commission seeking an order directing the opposite parties to provide a brand new mobile and to award a sum of Rs.1 lakh as compensation for deficiency of service, and unfair trade practice of opposite parties resulting in mental agony and financial loss sustained by the complainant and the cost of the proceedings.
2. Notice
Notice was issued from the Commission to the opposite parties and the first and third opposite parties received the notice, entered the appearance, and filed the version. The second opposite party was served and not filed version. Consequently, the second opposite party is set ex-party.
3. Version of 1st and 3rd opposite parties
The complainant purchased an Asus A501CG and there was some overheating and battery backup issue in his unit for which he approached the opposite party No.3 after the diagnosis of the said unit, the opposite party No.3 replaced the spare part i.e. motherboard, and handed over the operating unit to the complainant. The complainant after a month later approached the opposite party No.3 with respect to the technical issues of overheating, battery backup, and display in his unit, and in response to the said technical issues the service executive of the opposite party No.3 replaced the spare parts of LCD, Bezel Mod, IOFPC, ATL Poly and Mainboard in the unit of the complainant. The complainant was not ready to get the unit repaired as per the terms and conditions of the warranty policy and the complainant pressurized the Opposite party No.3 to repair it without any charges since the illegal demand did not adhere. The warranty terms and conditions apparently that any damage done by the customer himself will not be covered under the warranty policy. That the Opposite Party No.1 and 3 is not responsible for any such deficiency against the complainant as harped upon by him however it was the complainant who has shown discontentment with the repair offer made by the Opposite Party No.3 on a chargeable basis since the unit was under the customer induced damage, therefore the averments are rejected and not entertained. The complainant is not able to establish the deficiency of service on the part of the opposite party No.1 and 3 at any point in time except by making bald allegations against the Opposite Party No.1 and 3.
4) . Evidence
The complainant had filed a Proof affidavit and 3 documents that were marked as Exhibits-A-1- to A-3.
Exhibit A-1. The bill dated 24.08.2015 (Photocopy).
Exhibit A-2. Asus Product Service Form dated 27.10.2015 (Photocopy).
Exhibit A-3. Asus Product Service Form dated 21.11.2015 (photocopy).
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. As per Section 2 (d), a consumer is a person who buys any goods or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the bill dated 24.08.2015 (Exhibit A-1). Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, of 1986. (Point No. i) goes against the opposite parties.
In the above case, the complainant has produced Exhibits A-1 to A-3. In the present case in hand, the complainant purchased the mobile phone from the 2nd opposite party on 24.08.2015. The phone is manufactured by the 1st opposite party. The 3rd opposite party is the service centre. The model of the phone is Asus A501CG (51NCG) 16 GB, the 2nd opposite party issued a bill for the same. The complainant began to face problems with the phone from the very beginning. The phone was overheating and the battery charge would last for less than one hour even after fully charged. On 27.10.2015 the complainant approached the 3rd opposite party. The 3d opposite party accepted the phone for repair and returned it after, a week the 3rd opposite party claimed that they had repaired the phone. However, within a few days, the problem reoccurred and on one occasion the display of the phone began to flicker and there was no display. On 21.11.2015, the complainant again gave the phone to the 3rd opposite party for repair. Even after such repair the problems continued and in month June 2016 the phone became dead and it is refusing to switch on. Consequently, very important data like contacts, photos relating to the work of the complainant- etc. stand irretrievably lost. This has caused huge losses and embarrassment to the complainant, there is a clear deficiency of service on the part of the opposite parties.
The complainant submitted that the 1st opposite party is liable for manufacturing and supplying such a defective phone. The 2nd opposite party by selling such a defective phone to the complainant is jointly liable with the 1st opposite party for the damages caused to the complainant. The repair and service of the phone by the 3rd opposite party is also deficient and hence the 3rd opposite party is also liable. The 3rd opposite party claimed that they had repaired the phone.
The manufacturer and the service centre filed their Written Version denying all the averments made in the complaint. It is averred that the complaints of the complainant were duly attended by the service centre to the satisfaction of the complainant. It is denied that there was any manufacturing defect in the mobile phone and sought for dismissal of the complaint with cost.
The counsel for the opposite parties No. 1 and 3 submitted that the service executive of the Opposite Party No. 3 diagnosed the unit and after the said diagnosis they came to know that the damage is caused due to water clogging. The complainant was informed that it is the customer-induced damage that can be repaired only on a chargeable basis and it will not be considered within the warranty as the damage is caused by the complainant himself. So, since the damage was done by the complainant himself thus the repairs were not possible under warranty and the Opposite Party No.1 and 3 is not at all responsible for the said damage.
We have also noticed that a Notice was issued from the Commission to the second opposite party but did not file their version. Hence, the second opposite party set ex-parte. The complainant has filed 3 documents which are marked as Exbt.A-1 to A-3. All in support of his case. But the second opposite party did not make any attempt to set aside the ex- prate order passed against it.
The Honorable National Consumer Disputes Redressal Commission in Nachiket P. Shirgaonkar v/s Pandit Automotive Ltd. & Another, R.P No. 3519 of 2006 in Appeal No. 1953 of 2005, decided On, 25 February 2008 has observed that:
“In our opinion, from the admission made by the petitioner, it is clear that the vehicle had gone to them on several occasions for repairs. In our view, there is no necessity for a new car to go to workshop ‘on several occasions’ for repairs within a short span of one year of its purchase.”
The Commission here relied on the ‘Product Service Forms” (Exhibit A-2 and Exhibit A-3) that showed persistent problems in the mobile phone ever since its purchase on 24.08.2015. In fact, within just ten months of purchase, the mobile phone. Yet, despite repeated repairs, the problems were not resolved.
The opposite parties in their written version have stated that:
“There was some overheating and battery backup issue in his unit for which he approached the opposite party No.3 after the diagnosis of the said unit, the opposite party No.3 replaced the spare part i.e. motherboard, and handed over the operating unit to the complainant. The complainant after a month later approached the opposite party No.3 with respect to the technical issues of overheating, battery backup, and display in his unit, and in response to the said technical issues the service executive of the opposite party No.3 replaced the spare parts of LCD, Bezel Mod, IOFPC, ATL Poly and Mainboard in the unit of the complainant.”
This is a clear admission on the part of 1st and 3rd opposite parties that they had to replace the spare part i.e., the motherboard, during the first service itself. In addition, they have carried out other repairs. This is a clear indication that necessary parts were replaced due to manufacturing defects.
The Honorable National Consumer Disputes Redressal Commission in Nuzhat vs Dee Dee Motors Pvt. Ltd. & Anr, on 3 December, 2019, the Commission defined manufacturing defect as a “defect which persistently comes up and cannot be rectified even after attempts made by the dealer.”
The Opposite Parties have inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the Opposite Parties in failing to provide the complainant’s desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (ii), (iii) and (iv) are found in favour of the complainant for the serious deficiency in service that happened on the side of the opposite parties. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The Opposite Parties shall deliver a brand new mobile phone (Asus A501CG (51NCG) 16 GB) to the complainant and in default, pay Rs.10,000/-
ii. The Opposite Parties shall pay the complainant Rs.5,000/- (Rupees five thousand only) as compensation for loss caused to the complainants due to the deficiency in service and unfair trade practices of the opposite parties.
iii. The Opposite Parties shall also pay the complainant Rs. 3,000/- (Rupees three thousand only) toward the cost of the proceedings.
The opposite parties shall be jointly and severally liable for the above-mentioned directions which shall be complied with by the Opposite Parties within 30 days from the date of the receipt of a copy of this order. Failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission dated this the 30th day of January, 2023.
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. The bill dated 24.08.2015 (Photocopy).
Exhibit A-2. Asus Product Service Form dated 27.10.2015 (Photocopy).
Exhibit A-3. Asus Product Service Form dated 21.11.2015 (photocopy).
OPPOSITE PARTY’S EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
CC No. 428/2016
Order Date: 30/01/2023
