CC No.1943.2015

Filed on 02.07.2014

Disposed on 25.10.2016

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 25^th DAY OF OCTOBER 2016

CONSUMER COMPLAINT NO.1943/2015                                                                                                                                                                                                                                                  

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

             PRESIDENT

     Smt.L.MAMATHA, B.A., (Law), LL.B.

            MEMBER

                                      V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.07.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay Rs.90,000/-towards compensation along with new mobile phone of same model and other reliefs. 

2. The brief facts of the complaint can be stated as under:

On 30.06.2015 the Complainant purchased a Lenovo Smartphone A-7000 bearing IMEI No.866225029564164 from Flipkart with one year warranty.  On 26.10.2015 around 4.00 p.m the mobile phone charging port got melted down, while charging with the charger supplied along with the mobile phone by the seller.  The Complainant approached the Authorized Service Center M/s Pramani Mobile Service Zone at Jayanagar 4^th Block, Bangalore on 28.10.2015.  The person at the service center forced the Complainant to pay Rs.400/-for inspecting the mobile even though the mobile is under warranty, after inspection they told him that the motherboard is damaged and it is not covered under warranty and asking the Complainant to pay another Rs.4500/- for repairing the phone.  The phone got damaged due to some manufacturing fault.  The Complainant approached the Lenovo customer redressal head ED Service and he seller Flipkart by email and explained the problem and requested to solve the problem at the earliest, the ED services asked his executive to look into the problem but the executive also deied the warranty stating that it is physical damage and warranty does not cover.  Hence this complaint.  

3. Even though notice was served to the Opposite Party No.3.  The Opposite Party No.3 failed to put their appearance and placed ex-parte.  In response to the notice, the Opposite Party No.1 put their appearance through their counsel and filed their version.  In the version pleaded that there is no deficiency in services or unfair trade practice on the part of the Opposite Parties.  It is the gross negligence of the Complainant in using the mobile phone and non-natural use of the mobile phone might have resulted.  Hence, there is no manufacturing defect in the mobile phone.  The Complainant might have kept his mobile phone for charging for very long time and forgot to plug out from the charger even after such long hours of charging and which would have been resulted to the problem with the said mobile phone.  The negligent and unscientific way of using the mobile by complaint himself or by his acquaintances.  Hence, such an act of physical damage by the customer is termed as “Customer Induced Damage” issue and the same is not covered under the warranty of the Opposite Party.  Therefore, the mobile phone has been repaired by charging.  The Complainant has faced the problem by not following the electricity specification at his house or other premises where he has being charging his mobile phone.  The Complainant could have negligent in following these specifications and the problem might have cause to mobile phone by Complainant’s own fault.  The Complainant might have earthed the power supply at his premises to avoid spikes.  Hence, there is no manufacturing defect.   The problem in the mobile was on account of faulty use and not on account of any manufacturing defect in the mobile phone. The same had occurred due to Customer induced physical damage to the handset of the Complainant which is referred to as Customer Induced Damage.  The same cannot be attributed to any defect in manufacture and such defects are not covered under warranty.  In view of the same, no question arises of any deficiency in service on the part of the Opposite Party No.1.  Hence prays to dismissal of the complaint.
4. The Opposite Party No.2 put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is false, frivolous and vexatious filed with malafide intention.  The present complaint is neither maintainable in law nor on facts.  The complaint averments made in the complaint are baseless do not cover the complete facts.  The Opposite Party No.2 is a company under his Private Limited Company incorporated under the Companies Act 1956 is an online retail seller and one of the registered sellers on the marketplace website www.flipkart.com and has acquired good market reputation for its range of products and exceptional customer support.   The product in issue was manufactured by the Opposite Party No.1 carrying manufacturer’s warranty as provided by the manufacturer.  The present complaint should have been made only against the Manufacturer or its service Centre respectively, as the entire complaint is based upon the grievance in relation to the defect in the handset and it’s after sale eservices.  It is pertinent to mention here that there has not been any deficiency of service on the part of the Opposite Party No.2.  The product was delivered to the Complainant in a sealed box condition and without any delay hence there is no deficiency on the part of the Opposite Party No.2.  The Complainant had used the product in issue for almost over four months, from the date of receipt of the product, and thereafter out of the blue made allegations that the charging port got melted down so product carries manufacturing defects.  As a goodwill gesture the Opposite Party No.2 provides 30 day’s replacement warranty to its customers and it is an admitted fact that the Complainant did not face any problem with the product during these 30 days.  As such, a belated stage, the natural corollary that follows from the above facts the alleged melting of charging port of the mobile phone occurred due to the Complainant’s own fault and misuse of the product and hence the Opposite Party No.2 cannot be made liable, and therefore the complaint filed by the Complainant is liable to be dismissed.  The Opposite Party No.2 is reseller, registered on ‘Flipkart.com’ and the products bought by the Complainant carry warranty provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only.  The Opposite Party No.2 has no facility know to ascertain whether the product in issue in the present complaint is defective or has manufacturing defects.   Therefore, the reliefs prayed for by the Complainant against the Opposite Party No.2 are unreasonable and unsustainable in law and the Opposite Party No.2 is not liable to pay any compensation to the Complainant.  Hence prays to dismissal of the complaint.

5.      The Complainant, Sri.B.K.Muniraja has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Party No.1, the affidavit of one Ronendro Singh working as Senior Manager has been filed. On behalf of the Opposite Party No.2, the affidavit of one Mrs.Swati Singh working as Authorized Signatory has been filed.   Heard the arguments of both parties.  

6.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

7.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

8.   POINT NO.1:- As looking into the averments of the Complainant and version filed by the Opposite Parties, it is not in dispute that the Complainant purchased a Lenovo Smart phone A-7000 bearing IMEI No.866225029564164 on 30.06.2015  from Flipcart.  Further to substantiate this, the Complainant in his sworn testimony, reiterated the same and produced Invoice. As looking into this Invoice No.DEL20150600344845 under this Invoice the Complainant purchased Lenovo A-7000 through Flipcart on 30.06.2015 for a sum of Rs.17,998/-.  This evidence of the Complainant has not been denied or disputed by the Opposite Parties, thereby, it is proper to accept the contention of the Complainant that on 30.06.2015 the Complainant purchased the Lenovo A-7000 handset from Flipcart. 

9. It is the case of the Complainant that on 26.10.2015, the mobile purchased by the Complainant charging port got melted at his home while charging with the charger supplied along with the mobile phone by the seller.  The Complainant approached near Authorized Service Center M/s Pramanik Mobile Service Zone i.e., Opposite Party No.3.  On 28.10.2015 the person of the service center forced him to pay Rs.400/- for inspecting his phone even though the phone is under warranty and after inspection they told him that the motherboard is damaged and it is not covered under warranty and they are asking him to pay another sum of Rs.4500/- for repairing the phone.  In order to substantiate this, the Complainant in his sworn testimony, reiterated the same and also produced the Call Report issued by Pramanik Mobile Service Zone.  As looking into this, it is dt.28.10.2015 bearing a Job Sheet No.13990, problem Reported not charging and also Opposite Party No.3 has received Rs.400/- for inspecting the same.  Further the Complainant produced the complaint lodged with Opposite Party No.1 Lenovo.  As looking into this, it is dt.30.10.2015 through email the Complainant lodged a complaint against Opposite Party No.3 and in his complaint it clearly mentioned that they forced him to pay Rs.400/- for inspecting the phone and also asking him to pay Rs.4,500/- for repairing charges, since motherboard is damaged and it is not covered under warranty and also produced the mail send by the Opposite Party No.1 to the Complainant dt.02.11.2015, after receiving the complaint of the Complainant assuring that they will provide a special services team and to manage such issues with urgency and speed.  But in spite of giving such assurance the Opposite Party No.1 had not provided any better service to the Complainant.  On the other hand they send mail on.06.11.2015 informing the Complainant that they are certainly helping to service the handset but only on chargeable basis.  So from this evidence of the Complainant, it is very clear that the handset purchased by the Complainant while charging chargeable port got melted immediately i.e, on 26.10.2015 the Complainant approached the Opposite Party No.3.   Even though the Opposite Party No.3 received Rs.400/- for inspecting the same but have not provided proper service.  On the other hand, demand Rs.4500/- for repairing charges saying that it is not covered under warranty.   Admittedly the Complainant purchased the handset on 30.06.2016 with one year i.e. within the warranty period the said handset chargeable port got melted instead of getting repair the said handset.  The Opposite Party No.3 declined to get it repair at free of cost.  On the other hand, they demanded for a sum of Rs.4,500/- to get it repair of the faulty handset then the Complainant lodged a complaint with Opposite Party No.1.  Even Opposite Party No.1 given assurance to settle the issue but Opposite Party No.1 also failed to set right the things.  On the other hand, they also informed the Complainant that they are ready to help in repairing the handset only on chargeable basis.  This clearly show that the handset purchased by the Complainant is defective one.

10. The defence of the Opposite Party No.1 is that there is no deficiency of service or unfair trade practice on the part of the Opposite Parties.  It is the gross negligence of the Complainant in using the mobile phone and non-natural use of the mobile phone might have resulted here as matter of cause and the Complainant might have kept his mobile phone for charging for very long time and forgot to plug out from the charger even after such long hours of charging and which would have been resulted to the problem with the said mobile phone.  Hence such an act of physical damage by the customer is termed as “Customer Induced Damage” and the same is not covered under the warranty.  To substantiate this, except the interested version of Mr.Ronendro Singh Opposite Party have not produced any cogent evidence to show that the mobile handset purchased by the Complainant was due to “Customer Induced Damage” and as a result of the gross negligence of the Complainant in using the mobile phone and which is not covered under warranty.  In support of this, they produced the warranty as per the terms and conditions of the warranty failure or damage resulting from misuse, abuse, accident, modification, unsuitable physical or operating environment, natural disasters, power surges, improper maintenance, or use not in accordance with product information materials, damage caused by a non-authorized service provider, damaged caused by any third party product is not covered under the warranty but as stated earlier except by producing this warranty terms and conditions, the Opposite Party No.1 has not produced any evidence but on the other hand, the Complainant produced proper evidence to establish that the handset purchased by him within 1 year i.e., within the period of warranty charging port melted and when he approached the service center i.e., Opposite Party No.3 Authorized Service Center and also Opposite Party No.1 they failed to provide proper service, thereby, it amounts to deficiency of service on the part of the Opposite Party No.1 & 3. 

          11. There is no any allegation against the Opposite Party No.2 since he has purchased the handset through Opposite Party No.2.   For that reason, the Complainant made Opposite Party No.2 as a formal party and also there is no evidence to show that there is deficiency of service on the part of the Opposite Party No.2.  Hence, I answer point No.1 is accordingly. 

12. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is dismissed against Opposite Party No.2.

The complaint is allowed against Opposite Party No.1 & 3 holding that there is deficiency of service on their part.

The Opposite Party No.1 & 3 are directed to refund a sum of Rs.17,998/- value of the mobile handset.

The Opposite Party No.1 & 3 are directed to pay a sum of Rs.10,000/- as compensation to the Complainant. 

The Opposite Party No.1 & 3 are directed to pay a sum of Rs.2,000/- as cost within 30 days from the date of this order.

Supply free copy of this order to both the party. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 25^th day of October 2016)

 MEMBER                                         PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.B.K.Muniraja, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Retail Invoice/Bill dt.30.06.2015
2. Call Report dt.28.10.2015
3. Mail dt.30.10.2015, 02.11.2015, 03.11.2015, 06.11.2015, 16.11.2015, 18.11.2015, 19.11.2015 and 25.11.2015.

Witness examined on behalf of the Opposite Party:

1. Sri.Ronendro Singh, on behalf of the Opposite Party No.1 by way of affidavit.
2.  Mrs. Swati Singh, on behalf of the Opposite Party No.2 by way of affidavit.

List of documents filed by the Opposite Party:

1. The copy of the Resolution of the Board
2. The photographs
3. The Warranty Policy

       MEMBER                                                    PRESIDENT