Delhi

East Delhi

CC/221/2018

KAILASH NATH BHARDWAJ - Complainant(s)

Versus

LYF CARE CENTRE - Opp.Party(s)

03 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.221/2018  

 

	Kailash Nath Bhardwaj S/O Late Shri M.R.Bhardwaj Flat No 3010 Pocket 2, Mayur Vihar Phase 1, DELHI 110091	….Complainant
Versus
	LYF CARE CENTER, RELIANCE RETAIL LIMITED Plot No. 29 and 31. 1" Boor. Aggarwal Fun city Mall, CBD Shahdara Delhi-110032	……OP
	LYF CARE, RELIANCE RETAIL LIMITED Regd. Office: 3 floor, Court Road Lokmanya Tilak Mary. Dhobi Talao. MUMBAI 400002	OP

 

 

Date of Institution	:	19.07.2018
Judgment Reserved on	:	28.02.2023
Judgment Passed on	:	03.03.2023

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

 

Order By:

Ms. Rashmi Bansal

(Member)

 

 

JUDGEMENT

The present case is filed against the defendant OP claiming for the insurance of the phone lost in transit and for the suitable action against the OP with respect to the other phone which suffers from defects and has caused him immense mental harassment and agony.

1. It is the case of the complainant that he has purchased a LYF F8 mobile set, manufacturing of October 2016 and insurance and two years warranty by paying Rs.4199/-  as consideration to OP on 24.11.2016. The said mobile set was stolen during a bus journey on 09.09.2017, for which the complainant has lodged an FIR bearing 169 5401/2017 with police.
2. An online insurance claim 23.09.2017 was also filed by the complainant which was duly received and acknowledged by the OP but no reply was given to him by OP.
3. The Complainant has bought another mobile set LYF water 10 on 25.09.17 by paying Rs. 6999/- manufacturing of July 2016 and two years warranty. The complainant submits that the phone was not working properly from day one and he has visited the service center many times for the corrections where software update was done to mobile and on his much persistence, the battery was replaced in November 2016 manufactured battery however, the problem was not resolved. The ringer of the phone stopped working and also due to software update the complainant’s valuable data lost. On contacting the service center again the motherboard of the mobile set was changed but the problem remained there. The complainant alleges that he has been sold an old outdated mobile set which might be repaired or replaced one and many part of it also appeared to be repaired or replaced. The complainant further alleges that the internal memory of his mobile is 16 GB but after change of motherboard, the phone started showing it as 11.3 GB which proves that the replaced motherboard was not for his set and because of which he has faced several problems like the blackout, stopping charging after 90%, blackout after remaining below 30% battery, showing very less level of battery while charging power off and power on. Complainant has suffered problems due to the defective mobile phone, apart from wastage of his time and money, therefore, he on 03.06.2018, has asked OP for his money back or a new set with current manufacturing date but OP failed to do that. The complainant submits that he has been cheated with breach of trust by OP of his hard-earned money with false promises, which caused him mental tension and agony.
4. OP has filed its reply denying the allegations of the complainant stating that the complaint liable to be dismissed as it is frivolous as misconceived both in law and facts. OP took objection as to the jurisdiction of this commission as Mumbai forum has exclusive jurisdiction as per the warranty card.
5. OP submitted that complainant has not brought on record copy of his insurance policy purchased from or provided by OP and also not brought on record reference number for the insurance claim filed online by him.
6. Along with this OP has explained in detail about the term of extended warranty on the hand-free, USB, cable, charger and battery, which has been extended for a period of 12 months provided the same should be activated by the buyer. OP further submits that the extended warranty has also been given to the complainant for a period of six months from the date of original purchase.
7. OP submitted that new and box sale packet of the mobile handset was sold to the complainant and it was open in front of complainant and activated for the first time by the complainant. OP submitted that complainant has visited service center on 06.01.2018, on which occasion the battery was replaced, on 28.04.2018, the software was updated, on 02.05.2018 PCBA of the phone was replaced, on 4.05.2018, again PCBA was replaced and further on 18.09.2018, the PCBA was replaced and on each occasion the job sheet was issued to the complainant and this has been shown to the complainant that after each service the phone was working properly. Though they have found moisture on the litmus paper of the PCBA but despite that they did not consider phone out of warranty and replaced the PCBA. OP further states that they are not responsible for the data loss as a prior warning has been given to all the customers to save their data before giving phone for servicing. OP prays for dismissal of complaint.
8. Both the parties have filed their evidences and written arguments.
9. In support of his claim, complainant has filed the payment receipts, Insurance Policy,  mediation report dated 29.05.2018 where OP did not appear, job sheets and letter to the manager service care center for insurance and tracking of his lost mobile.
10. OP has filed terms of warranty, job sheets dated 06.01.2018, 28.04.2018, 02.05.2018, 04.05.2018 and 18.09.2018.
11. We have gone through the document on record and heard the counsel for both the sides. The preliminary objection of the OP with respect to the jurisdiction of this commission is to be addressed first before adjudicating the complaint.  This is the settled principle of law that the jurisdiction cannot be created between the parties as per their convenience. The Hon'ble NCDRC in Neha Singhal vs. Unitech Ltd. II(2011) CPJ 88 (NC) has held as under:-

"Agreement between parties cannot oust original jurisdiction to defeat the purpose and object of the Act". Therefore, this commission has jurisdiction to entertain the present complaint as OP works for gain within the territorial limits of jurisdiction of this commission.

12. The documents on record shows and it is also admitted case of OP that the mobile set has come to them many times, almost for an year  and in view of the admitted case of OP that the phone was under warranty and they have worked upon it each time complainant approached them and after servicing or replacement of battery or PCBA, it functioned in normal condition. This is also on record that each time job sheet was issued to the complainant. OP has also admitted that PCBA of the phone was found having moisture, but it was not considered significant enough to consider phone out of warranty, therefore, it was repaired. All the above circumstances show that even the new product, which is supposed to work properly at least in the early years of its life after the purchase has required continuous repairing and replacements of its battery or PCBA three times in a short span of time. The complainant had to visit to OP again and again for getting his phone work properly. The phone of the complainant repaired many times even when it is in the warranty period, itself signifies that the mobile handset was defective. The phone was bought by the complainant for defect free use of the product and not to just get it repaired multiple time despite it being a new one and have been purchased at the full value/consideration.
13. Considering the above facts and circumstances, this commission is of the view that the product is defective, and OP is under duty to give its customer defect free product, and therefore, OP is directed to refund the proportionate value of the mobile set.  As the mobile was used by the complainant for four months, therefore, OP is directed to return the 80% of the purchase value i.e. 80% of Rs.6999/- which is equals to Rs.5599/- along with compensation of Rs. 5000/- towards harassment and mental agony suffered by him, which shall include the litigation cost.  The complainant is directed to return the phone to the OP simultaneously at the time of receiving the amount of Rs.5599/- from OP.  The above stated order be complied with in one month from the date of receiving of the order, failing which PP shall be liable to pay an interest at the rate of 6% per Anum till it’s actual realization by the complainant.
14. So far as the claim of the complainant concerned with the insurance of the phone, the complainant has not placed on record the policy, policy number, claim filed or any further detail except a document addressed to the customer care manager regarding insurance claim and tracking of his lost phone. In the absence of any evidence towards the insurance of the first phone, this commission is unable to adjudicate upon the same.
15. The file may be consigned to record room after providing the copy of the order to the parties in terms of the CPA rules, 2019 and order may be uploaded on website.
16.  The present case, being a senior citizen case has been considered on the priority basis, however, could not be decided in the statutory period due to heavy pendency of the cases before the commission.
17. The order contains – 08 pages, each beers our signature.
18. Pronounced on –  03.03.2023