Punjab

Ludhiana

CC/16/549

Sunil Kuimar - Complainant(s)

Versus

Motorola Mobility Technologies - Opp.Party(s)

Neena Gupta ADv.

18 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                            Complaint No: 549 dated 29.07.2016.                                                             Date of decision: 18.08.2017

                   

1.Sunil Kumar Lagah, Proprietor of M/s Lagah Worldwide Inc, B-1, 55/2, St. No.3, Shahi Mohalla, Near Handa Hospital, Civil Lines, Ludhiana.             2.Neena Gupta, Advocate, Chamber No.357, District Courts, Ludhiana.                                                                                                                                                                                                                           ..…Complainants                                           Versus

1.Motorola Mobility Technologies China Ltd., K-Raheja IT Park, Hi-Tech City, Madhopur, Hyderabad through its Managing Director.

2.M/s Cel Tech India, 24-A, Surya Shopping Complex, National Road, Bhai Wala Chowk, Ludhiana-141001, through its Prop./Partner/Auth.signatory.

3.M/s WS Retail Services Private Limited, Ozone Manay Tech Park, No.56/18, B-Block, 9^th Floor, Gurvebhavipalya, Hosar Road, Bangalore-560068 through its Director.                                                                                                                                                                                                   …..Opposite parties  

            Complaint under Section 12 of Consumer Protection Act, 1986.

QUORUM:

SH. G.K. DHIR, PRESIDENT                                                                         SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainants             :         Ms.Neena Gupta, Advocate.                              For OP1 and OP2            :         Ex-parte.                                                            For OP3                           :         Sh.Sunil Dutt, Advocate for OP3.

ORDER

PER G.K. Dhir, PRESIDENT

1.                           Complainant no.1 purchased mobile handset of make Moto G(2nd Generation) bearing IMEI No.358978062672311 through Flipkart.com from OP3 vide invoice No.BLR_WFLD20150800779927 dated 17.8.2015 for Rs.9999/-. The said mobile handset was having warranty of one year. This mobile handset was gifted by complainant no.1 to complainant no.2 owing to family relations and as such, complainant no.2 is using the mobile handset in question. In June/July 2016, the mobile handset in question suffered charging problem and as such, complainant no.2 visited the office of OP2 for repair of the mobile handset in question, because the same was within warranty period. Original bill even was shown to OP2 for his satisfaction regarding availability of warranty. However, complainant no.2 received telephonic call from the official of OP2 on next day to the effect that she will have to pay charges for repair of the mobile handset. Approximate amount of Rs.4800/- was sought by the official of OP2 from the complainant no.2 for rectifying the defects.  This demand put forth despite the fact that repair was required to be done free of costs because of mobile handset within warranty period. Then complainant no.2 contacted customer care executive of OP1 for apprising him the facts. A complaint was lodged with OP1. Approval was granted for removing the defective part within the warranty period without charging any amount from the complainant no.2 and as such, complainant no.2 visited OP2 again on next day for removal of defects, but OP2 flatly refused to remove the problem. However, the mobile handset in question was returned to the complainant no.2 after charging amount of Rs.275/- for checking the same. This amount was charged vide invoice No.268 dated 12.7.2016. It is claimed that the mobile handset in question is lying with complainant no.2 in unused condition because of charging problem. Legal notice dated 15.7.2016 even was sent to OPs for calling upon them to repair the mobile handset or replace the same with new one. By pleading deficiency in service and adoption of unfair trade practice by Ops, prayer made for directing OPs either to repair the mobile handset or to replace the same with new one. Compensation for mental agony and physical harassment of Rs.20,000/- and litigation expenses of Rs.20,000/- more claimed.

2.                 OP1 and OP2 are ex-parte in this case.

3.                 OP3 filed written statement by contesting the claim by claiming that it is carrying on business of sale of goods manufactured/produced by others. Rather, it is claimed that OP3 is a registered reseller on the website of Flipkart.com. OP3 sells the products manufactured by others through the website. Besides, it is claimed that the complainants have not approached this Forum with clean hands, due to suppression of material facts because gifting of mobile handset in question by the complainant no.1 to complainant no.2 is not proved by any evidence. OP1 is the manufacturer and Op2 is the service centre appointed by manufacturer qua the mobile set in question. There is no relationship of principal and agent between OP3 and remaining Ops. It is claimed that entire grievance of the complainants relates to the defects of the product after sale service issue, which are to be provided  either by the manufacturer or by the service centre i.e. Op1 and OP2 only and not by OP3 because of its being reseller of the products only. When complainant contacted OP3,then information regarding these facts was given to him through email communication. So, it is claimed that OP3 is not liable in any respect. Rather, the complaint against Op3 alleged to be false, vexatious and frivolous, due to which, prayer made for its dismissal. Warranty is to be provided by the respective manufacturer regarding manufacturing defect, but subject to the terms and conditions thereof as determined by the manufacturer. Irrespective of the warranty as provided by the manufacturer, Op3 as a goodwill gesture provides 30 days return/replacement service to its customer, in case there is any issue in the product within that period of 30 days, provided the defect cannot be rectified or removed. However, complainants in this case have used the product for about 11 months without approaching OP3 and as such, defects arose after lapse of about 11 months only. Op3 has no facility or knowledge for ascertaining the manufacturing defect or other defects in the product and removal of those defects is the responsibility of OP1 and OP2 and as such, complaint against Op3 prayed to be dismissed, even though it is admitted that the mobile set in question was purchased by the complainant through the website services provided by OP3.

4.                 Counsel for complainant tendered in evidence affidavit Ex.CA of Mr.Sunil Kumar Lagah, Proprietor of complainant no.1 concern, affidavit Ex.CB of complainant no.2 namely Ms.Neena Gupta along with documents Ex.C1 to Ex.C5 and then closed the evidence. By way of additional evidence, even document Ex.CW1/A tendered and thereafter, additional evidence was closed.

5.                 On the other hand counsel for Op3 suffered statement to the effect that written statement filed by OP3 may be read in evidence and thereafter, closed the evidence. No rebuttal to additional evidence has been adduced.

6.            Written arguments not submitted by any of the parties. Oral arguments alone addressed by counsel for parties and those were heard. Records gone through carefully.

7.                 Perusal of Invoice Ex.C3 shows as if the mobile handset in question was purchased in the name of complainant no.1 concern. Ex.CW1/A is the certificate of registration of complainant no.1 concern, which shows that Mr.Sunil Kumar is the proprietor of complainant no.1 concern. This certificate of registration issued by the officials of Central Sales Tax Department and as such, contents of same liable to be taken into consideration for recording finding that in fact Sunil Kumar Lagah(whose affidavit Ex.CA tendered in evidence) is the proprietor of complainant no.1 concern. This mobile set in question was purchased as such for Rs.9999/- through Flipkart services for complainant no.1 on 17.8.2015, that is the date of issue of invoice Ex.C3. Contents of affidavits Ex.CA and Ex.CB establishes that Sunil Kumar Lagah has orally gifted this mobile hand set    to complainant no.2, due to family relations and as no evidence to the        contrary produced and as such, it has to be held that the mobile in question is in the hands of OP2 since it is being gifted to her. So, complainant no.2,being user of the mobile handset in question, falls in the definition of consumer given in section 2(1)(d) of the Consumer Protection Act, 1983(hereinafter in short referred to as 'Act').

8.                 Warranty period of mobile handset in question is for 1 year and as such, the same was to lapse not before 17.8.2016, but defect in the mobile set took place on 12.7.2016 as revealed by retail invoice Ex.C4. Rs.275/- were charged from complainant no.2 as checking charges on 12.3.2016 is the facts borne from the contents of Ex.C4. So, certainly pleas taken in the affidavits Ex.CA and Ex.CB are correct that the mobile handset was within warranty period, but despite that Op2, being service centre of OP1, charged Rs.275/- just for checking of mobile handset in question. In such circumstances, contents of affidavits Ex.CA and Ex.CB absolutely are correct that owing to charging problem in the mobile handset in question, complainant no.2 took the same to Op2 for repair, but OP2 refused to repair the same, despite the fact that the complainant contacted customer care centre of OP1 even through email as disclosed by contents of Ex.C5. As the mobile handset in question was within warranty and as such, it was the responsibility of Op1 as manufacturer, but of OP2 as authorized service centre to remove the defects free of costs. That has not been done, despite visit by Op2 for repair of the mobile set in question on 12.7.2016 and as such, deficiency in service on the part of OP1 and OP2 is there.

9.                 OP3 is just reseller of the products manufactured by others like Op1 and as such, liability of OP3 for removing the defects is not there, particularly when the warranty for rectifying the defects provided by the manufacturer through service centre and not by the seller. Defect in the mobile handset took place after about 11 months and as such, inference of manufacturing defect cannot at all be drawn, particularly when no expert report or expert opinion produced by the complainant to establish that. Charging problem does not point out the manufacturing defect and as such, facts and circumstances of the case requires that Op1 and Op2 must repair the mobile handset in question free of costs once for making the same functional properly. Complainant for that purpose will   approach either  OP1 or OP2 within the specified period. As defect to be   removed by OP1 and OP2 and main grudge of the complainant is against Op1 and Op2, due to rendering deficient services in not repairing the mobile handset in question within the warranty period and as such, certainly submissions advanced by counsel for OP3 has force that complaint against OP3 is not maintainable, particularly when it is neither manufacturer and nor the service provider. As complainant suffered mental tension and agony, due to which, he has to file this complaint and as such, he is entitled to some meager amount of compensation and litigation expenses by keeping in view the worth of mobile set as Rs.9999/- and the fact that it was used without defect after purchase by the complainant for about 11 months.

10.               As a sequel of above discussion, complaint against OP3 is dismissed, bust same is allowed against OP1 and OP2 in terms that they will repair the mobile set in question free of costs once for making the same as proper functional within 30 days from date of receipt of copy of order,, but on presentation of the same by the complainant or any of them within 7 days from the date of receipt of copy of this order. Compensation for mental harassment and agony of Rs.1500/- (Rupees One Thousand and five hundred only) and litigation expenses of Rs.1500/- (Rupees One thousand and five hundred only) more allowed in favour of complainant and against OP1 and OP2, whose liability held as joint and several. Payment of these amounts be also made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

11.               File be indexed and consigned to record room.

 

                                         (Param Jit Singh Bewli)                      (G.K. Dhir)

                                         Member                                              President

Announced in Open Forum.

Dated: 18.08.2017.

Gurpreet Sharma