BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.
Complaint No.44/18.
Date of instt.:25.01.2018.
Date of Decision:04.01.2019.
Pardeep Gaba son of Pawan Kumar r/o Siwan Tehsil & Distt. Kaithal.
……….Complainant.
Versus
- M/s Gupta Telecom r/o near Dhola Darwaja, Siwan, Tehsil & District Kaithal through its proprietor/partner.
- Pace Tel Systems Private Ltd. r/o 18A/10, Ground Floor, Chotu Ram Chowk, Dhand Road, Kaithal District Kaithal through its Manager (Service Centre/Customer Care).
- OPPO Mobiles India Private Limited, A 154-B, Sector 63, Phase III, Noida Uttar Pardesh, 201301, (Manufacturer).
..……..Opposite Parties.
COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.
Before: Sh. Rajbir Singh, Presiding Member.
Smt. Suman Rana, Member.
Present : Shri Gaurav Mittal, Advocate for complainant.
OP No.1 ex parte.
Shri Kuldeep Dhull, Advocate for OP Nos. 2 & 3.
ORDER
(SUMAN RANA, MEMBER).
The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that he purchased a mobile make OPPO from OP No.1 for Rs.15000/- vide bill No.403 dt. 16.06.2017 with one year warranty. The phone went out of order after sometime of its purchase as its touch screen stopped working due to its manufacturing defect. On 29.11.2017 the complainant approached OP No.2 either to remove the defect or to change the defective mobile but it demanded Rs.2434.89 as repair cost. The said demand is illegal as the phone went out of order within warranty period. The OPs have failed to do the needful which is clear cut deficiency in service on their part. In evidence, the complainant has tendered affidavit Ex.CW1/A and documents Ex.C1 and Ex.C2.
2. On notice Ops appeared and filed their separate replies. OP No.1 in its reply has taken preliminary objections such as cause of action, maintainability and locus standi etc. Purchasing of mobile has not been denied. No irreparable loss has been suffered by the complainant. Other allegations have been controverted and prayer for dismissal of the complaint has been made.
3. OP Nos. 2 & 3 in their joint reply have submitted that the physical damages are not a manufacturing defect and even there is no guarantee/warranty if the phone is physically damaged. The complainant had agreed to replace the new touch with LCD of the mobile on his own expenses and also got prepared the estimate duly signed by him but was not agreed for repair the set, therefore, the set was returned un-repaired on 29.11.2017. There is no deficiency in service on the part of OP Nos.2 & 3. Other contentions have been controverted and prayer for dismissal of the complaint has been made. During the proceeding of this complaint Op No.1 remained absent, therefore, it was proceeded against exparte vide order dated 21.11.2018. In evidence OPs No.2 & 3 have tendered documents Ex.R1 to Ex.R4 and Mark R1 to Mark R3.
4. We have heard ld. counsel for the complainant and perused the case file carefully and minutely and have also gone through the evidence led by the complainant.
5. As per Ex.C1, the complainant had purchased the mobile handset from OP No.1 on 16.06.2017. The complainant has come with the plea that the mobile phone went out of order during its warranty period as the touch of the same stopped working but the OPs have neither repaired the same nor replaced with new one as there was manufacturing defect in it. On the other hand learned counsel for the appearing OPs have drawn the attention of this Forum towards Mark R1 i.e. job sheet wherein it has been clearly mentioned that Touch not working invalid touch functions and touch with LCD Black is physical damage and this very document is duly signed by the complainant. In this document the warranty status has also been shown as Void. The phone in question was physically damaged and this fact also finds support from Estimate Ex.C2 prepared by the Op No.2. Undisputedly, the product in question was having one year warranty but when the handset was physically damaged then the complainant cannot claim the warranty benefit, therefore, the OP No.2 had rightly demanded Rs.2434.89/- as shown in estimate being approximately repair cost including GST charges etc. Undoubtedly the provisions of the Consumer Protection Act are benevolent in nature but it does not give any liberty to anyone to take undue advantage thereof.
6. Keeping in view of the above said facts and circumstances we are of the considered view that there is no deficiency in service on the part of OPs; therefore, the present complaint deserves dismissal. Accordingly, we dismiss the present complaint. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
Announced.
Dt.04.01.2019.
(Suman Rana) (Rajbir Singh)
Member. Presiding Member.
Present: Shri Gaurav Mittal, Advocate for complainant.
OP No.1 ex parte.
Shri Kuldeep Dhull, Advocate for OP Nos. 2 & 3.
Remaining arguments heard. Order pronounced, vide our separate order in detail of even date, the present complaint is dismissed. File be consigned to record-room after due compliance.
Announced.
Dt.04.01.2019.
(Suman Rana) (Rajbir Singh)
Member. Presiding Member.
