Before:        Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

Present:       Complainant in person alongwith Shri Keshava Sarup Chopra,  Advocate.                                                                                                      Shri Rajiv Sachdeva, Advocate, counsel for the OP No.1.

                    Shri Vivek Sagar, Advocate, counsel for the OP No.2.

                    Defence of OP No.3 already struck off.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.1,00,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
2.   To replace the defective mobile with new mobile or to refund the price of the same.
3. To pay Rs.5,500/-, as litigation expenses.  
4.     Grant any other relief which this Hon’ble Commission may   deems fit.

2.             Brief facts of the case are that on 13.10.2021, the complainant had purchased mobile Smartphone “POCO X3 Pro-8GB+128GB” (IMEI/Serial No.868934051459593) online from Flipkart website on the ID of complainant’s son Shri Anubhav Jain for Rs.17,749/- vide Invoice Number # FAIFTI2200034887, dated 13.10.2021 issued by M/s Health & Happiness Pvt. Ltd. Gurugram. During August, 2022 and many times thereafter this Smartphone “POCO X3Pro-8GB+128GB” became defective i.e started creating problem of auto power off and automatic restart unexpectedly for some time. The warranty period of one year was to complete in Oct, 2022 and further six month extended warranty given by the manufacturer upto April 2023. The defect of this Smartpohone was “automatically restart but unable to start normally and was getting hanged and was getting switched off in the restart mode till the Battery got fully discharged”. After charging Battery again, the mobile started functioning normally. In August, 2022, the mobile phone was shown to service centre at Ambala Cantt namely M/s  Mohan Lall Mukand Lall & Co, Anant Building, Bank Road” and they told that mobile is running smoothly at this time and not showing the problem. Please bring mobile while problem is in progress and get the video shot of problem i.e auto restart defect and mobile is unable to start functioning till Battery ends. They also suggested to get the backup data of mobile. After few days on 02.09.2022, the same auto restart problem occurred again during travel and after discharging Battery, power was off. After charging Battery, the mobile phone was deposited with service centre at Ambala Cantt. to “M/s Mohan Lall Mukand Lall & Co. Anant Building, Bank Road” on 03.09.2022, it created a jobsheet in its system and returned the mobile on 04.09.2022 and told that it had installed new software and mobile is updated and running smoothly at this time and not showing the problem. It also informed that many such cases are coming to it because this problem had occurred due to updating software online from backend by company with a particular version of software in mobile. Further, it assured that if this problem continued, then the company will replace the said mobile with new one but now the company has updated the software. The service centre only updated the software and on asking about warranty of one year, which is about to expire in October, 2022 then it has given assurance that the company has extended its warranty upto 18 months instead of one year and returned the mobile on 04.09.2022. On 09.01.2023, the same auto restart problem occurred and repeated again & again during travel and at this time a video for such problem was made and also online complaint was made to the company on 09.01.2023. Therefore, appointment of service centre at Ambala Cantt. vide Token No.M5498681 was booked on 10.01.2023 as there was weekly off on Monday, 09^th January, 2023 at that centre. On 10.01.2023 mobile phone was deposited with service centre at Ambala Cantt. with recurring problem of auto power off and auto restart but unable to start. They also tried to remove software error by uploading new software again but the problem still existed and the engineer staff was unable to resolve the problem. Then it also made video and informed that the problem will be sent to company. On asking, till when it will be replaced with new mobile set, it was informed that “after receiving reply from company you will be informed”. Then it issued job sheet against depositing of Mobile set. On enquiring next day on 11.01.2023, for early action, it was informed to the complainant that the phone will be repaired by replacing the mother board instead of providing a new mobile but the mother boards are not in stock, you will get it after one month and you will be informed regarding the same. On 11.01.2023, Complainant asked the service centre to replace the said mobile with the new one as the same is defective since August, 2022 i.e about within 10 month of mobile use and mobile is till within warranty period, which is upto 18 months. The official of the service centre told the complainant that as per the policy of the Company, the motherboard of the mobile will be replaced, not the mobile set, in question. They also refused to provide extra mobile to use during this period. On 09.01.2023, Complainant lodged the complaint and deposited the mobile set with the service centre on 10.01.2023 and it took two months to repair without providing a new mobile set. It is further stated that the OPs are liable to replace the said mobile set with the new one, as it got defective during warranty period. By not replacing the defective mobile, purpose of warranty is defeated. Being aggrieved the complainant has made conversations with the company through emails. On 11.03.2023 i.e. after lapse of two months from the date of the deposit of the defective mobile with the service centre, complainant received a message and also a call that the mobile set has been repaired and to collect the same from the service centre. Since, the complainant was fed up with service done by the service centre, therefore, he refused to collect the defective mobile after repair. The complainant served a legal notice dated 17.03.2023 upon the OPs with a request to replace the defective mobile set with the new one, or to refund the prize thereof, as the same got defective within the warranty period, but nothing was done by the OPs. Hence this complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability etc. On merits, it has been stated that complainant has purchased a mobile handset sold under POCO brand namely, the POCO X3 Pro mobile phone having IMEI No.868934051459593 on October 13, 2021 for Rs.17,749/-. On 10.01.2023, complainant approached the authorized service centre of the OP No.1 alleging face issues related to the Product. The technician of the authorized service centre examined and inspected the product. After examination/inspection of the Product at the authorized service centre of the OP No.1, the motherboard of the product was replaced and returned to the complainant in proper working condition for free of costs as can be ascertained from the jobsheet-WXIN2301100003542. On 29.03.2023 (i.e after expiry of warranty period), the complainant again approached the authorized service centre of the OP No.1 alleging face issues related to the product. The handset’s warranty period had lapsed/expired. Wherein, the technician of the authorized service centre duly informed the complainant that the applicable warranty terms of the product has expired and therefore, no repair/service can be provided to him for free of cost after expiry of the warranty period and the extended warranty period. However, the complainant refused to pay the repair cost and left the product at the authorized service centre, demanding a replacement, the technician of the authorized service centre duly informed that the handset is working fine and need no replacement. Therefore, the technician closed the repair call as can be ascertained from job-sheet WXIN2303290001158. It is established principle that if the handset is repairable, the handset will be repaired first and if not repairable, then it will be replaced. It is only when the handset cannot be replaced, a refund is initiated. However, the complainant refused to take the product despite the product being in proper working condition. OP No.1 has provided services according to warranty terms and conditions. The handset of the complainant has worked perfectly fine for the warranty period which clearly establishes that the handset is of good  quality and there is no manufacturing defect in the product. Rest of the averments of the complainant were denied by the answering OP and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed true and material facts etc. On merits, it has been stated that complainant has purchased a POCO X 3 Pro Mobile Phone (hereinafter referred as product) and same was delivered on time to the complainant by the answering OP. Complainant has himself admitted that the product was ordered from the account Mr. Anubhav Jain but he has not impleaded him as a party to the present complaint. It is further stated that the role of the answering OP is only limited to selling the products of various manufacturers and its role comes to the end as soon as the product ordered is delivered at the address provided by the customer. The manufacturer/its authorized service centre and the answering OP is separate and distinct identity. In the present case, the answering OP has delivered the product in a sealed box to the complainant (as it was received from the manufacturer/distributor) within the time specified in the order through a third party logistics service provider. It is further stated that any kind of warranty/guarantee on the product under consideration is offered and provided by the manufacturer of the product only subject to terms and conditions determined by the manufacturers only and not by the answering OP. It is further stated that the complainant has never contacted the answering OP for the alleged issue. Complainant has only approached the authorized service centre of the manufacturer for the alleged issue and not the answering OP. Hence, any request regarding warranty issue/replacement/refund only comes under the purview of the manufacturer and not the answering OP. It is further stated that there is not deficiency of service on the part of the answering OP, either shortage of supply nor delay in delivery to have been committed by the answering OP, neither it has been alleged by the complainant. It is pertinent to mention here that it is the settled case that the answering OP cannot be held liable for manufacturing defect/fault in goods. It is further stated that in the contents of para No.4 of the present complaint the alleged issue came in August 2022 i.e after using the product for almost 10 months from the date of purchase (i.e 13.10.2021), which means when the said product was delivered, at that time the product was working properly. Complainant himself directly approached the OP No.3 i.e authorized service centre of the manufacturer. Further, the complainant in para No.26 of the complaint has himself mentioned that the service centre assured that alleged issue will be resolved. Complainant never contacted the answering OP. It is further stated that request for replacement/refund made by the complainant cannot be fulfilled by the answering OP because it is only provided by the manufacturer. The answering OP is in the business of selling products of the other manufacturers, hence the answering OP is not answerable or liable to provide new product/refund to the complainant. It is pertinent to mention here that any grievance which the complainant has raised in the entire content complaint is only against the manufacturer. It is reiterated that the responsibility to provide services lies upon the manufacturer and/or service centre only and hence replacement or return can only be entertained by the manufacturer only.  Rest of the averments of the complainant were denied by the answering OP No.2 and prayed for dismissal of the present complaint with exemplary costs.
5.           Despite availing number of opportunities, after putting appearance, when OP No.3 did not file written version, its defence was struck of by this Commission vide order dated 30.11.2023.
6.           Complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 to C-10 and closed the evidence of the complainant. Learned counsel for the OP No.1 tendered affidavit of Sameer BS Rao Authorized Representative of Xiaomi Technology India Private Limited having its principal place of business at Building Orchid, Block-E, Embassy Tech Village, Marathahalli- Sarjapur Outer Ring Road, Devarabisanahalli, Bengaluru, Karnataka-560103 and Avinaash Bainsh son of Raj Kumar, a national of India and presently employed as Engineer at Serviquo as Annexure OP1/A & OP1/B respectively alongwith documents Annexure OP-1/1 to OP-1/5 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 made a statement that written version of OP No.2 may be read as evidence of OP No.2 and closed the evidence on behalf of OP No.2.
7.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 & 2 and have also carefully gone through the case file.
8.           Complainant has submitted that by selling a defective mobile handset  and on the other hand failure to rectify the defects therein and thereafter neither replacing the defective handset with a new one or refunding the price of the same, the OPs have committed deficiency in providing service.
9.           On the other hand, learned counsel for the OP No.1 submitted that in the first instance, it was found that the mother board of the said mobile handset was defective, as such, OP No.3 being service centre replaced the same, free of cost and returned it to the complainant in working condition. He further submitted that thereafter, the complainant visited OP No.3 on 29.03.2023 with some defect in the said mobile handset and since at that time, the said mobile handset was out of warranty, the complainant was informed that repair will be done on payment basis, he refused for the same. Complainant instead of taking the delivery of the mobile handset, which was duly repaired by the OP No.3, had demanded replacement of the same with the new one. He further submitted that the complainant has not produced any expert report qua defect in the said mobile handset, which shows that mobile in question did not suffer from any manufacturing defects and replacement of the same with the new one was not feasible as per terms and conditions of the warranty.
10.           Learned counsel for OP No.2 submitted that OP No.2 is not engaged in manufacturing of any goods, it is only engaged in selling the goods manufactured and produced by manufacturers, through online website FLIPKART. There is no relation of principal and agent between OPs No.1 and 2. He further submitted that the complainant himself admitted that defect in the said mobile handset came after 10 months of its purchase, which had been repaired by OP No.3. The complainant has not placed on record any expert report to prove that there is any manufacturing defect in the mobile in question and he is wrongly insisting to get new mobile handset, which is not feasible, as per terms and conditions of the warranty.
11.           It is coming out from tax invoice dated 13.10.2021, Annexure C-1 that the complainant purchased the said mobile from OP No.2 for an amount of Rs.17749/-. It is clearly evident from POCO Warranty Notice Annexure OP-1/3 that the mobile handset in question manufacturing by OP No.1, carried warranty of 1 year and 6 months. It is further coming out from the documents Annexure C-2 to C-10 that correspondence took place between the parties qua defect in the said mobile handset. Job card dated 10.01.2023, Annexure OP-1/1 reveals that the mobile handset was landed with OP No.3 with the defect “AUTO OFF” and admittedly thereafter it was returned to the complainant. However, this defect arose within the warranty period. From the perusal of job card dated 29.03.2023, Annexure OP1/2  it is evident that within a short period of less than two months, the said mobile handset was landed with OP No.3 with the same defect “AUTO OFF” meaning thereby that  the defect was of such a nature, which could not be rectified.
12.           The fact that the mobile handset was within the warranty period at the time of both complaints, coupled with the recurrence of the same defect -“AUTO OFF” in such a short period, points to a possible inherent manufacturing defect in the mobile handset. This defect, by its nature, cannot be considered a minor issue and the failure to repair the mobile handset despite being within the warranty period signifies that the OPs No.1 and 2 have failed to provide a defect-free product, as per the terms of the warranty. A product with inherent defects that cannot be remedied within the reasonable warranty period cannot be considered fit for use, and the complainant cannot be made to suffer further inconvenience by repeated repairs. The complainant is therefore held entitled for replacement of a new mobile handset against the defective mobile handset which is admittedly still lying with OP No.3.
13.           As far as plea taken by OPs No.1 and 2 that the complainant has failed to provide any expert report qua defect in the said mobile handset, it may be stated here that the job cards, referred to above, issued by OP No.3, qua repeated defects of “AUTO OFF” in the said mobile handset is sufficient to prove that the said mobile handset was suffering from inherent manufacturing defect.
14.           Since OP No.3 is only a service centre and no deficiency in service can be attributed to it, if it failed to repair the mobile handset with manufacturing defect, therefore complaint against OP No.3 is liable to be dismissed.
15.           In view of the aforesaid discussion, we hereby dismiss the present complaint against OP No.3 and allow the same against OPs No.1 and 2. The OPs No.1 and 2, jointly and severally are directed as under:-

1. To replace the defective mobile handset purchased by the complainant with a new defect-free mobile handset of the same make and model or in the alternative to refund the amount of Rs.17,749/- paid by the complainant alongwith interest @6% p.a. w.e.f 05.06.2023, date of filing of the complaint, till realization.
2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/-, as litigation expenses. . 

                    The OPs No.1 and 2 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.1 and 2 shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced:- 16.12.2024