| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.28 of 20-01-2015 Decided on 12-01-2016 Tarun Nanchahal aged about 21 years S/o Raman Kant R/o # 2755, Nai Basti, GT Road, Bathinda. ........Complainant Versus 1.Royal Telecom, Shop No.36, Fish Market, Bathinda, through its Proprietor/Partner/Manager/Incharge/Authorized Signatory. 2.Adev Electronics, Near Bakshi Hospital, Bathinda, through its Proprietor/Partner/Manager/Incharge/Authorized Signatory 3.Sony India Pvt. Ltd., A-131 Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044, through its Managing Director/Chairman/Authorized Signatory. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Smt.Sukhwinder Kaur, Member. Sh.Jarnail Singh, Member. Present:- For the Complainant: Sh.S.K Bansal, counsel for complainant. For Opposite parties: Opposite party No.1 ex-parte. Sh.Vinod Garg, counsel for opposite party Nos.2 & 3. ORDER M. P. Singh Pahwa, President The complainant Tarun Nanchahal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Royal Telecom and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he was in need of mobile handset for his personal use. He visited the shop of opposite party No.1 where he was allured for purchase of Sony Xperia T2 Ultra mobile handset. It was also assured that this mobile handset is most popular and believable in the market and free from all type of defects and if any defect occurs after its purchase or later on after using, then the service centre of opposite party No.3 i.e. opposite party No.2 would provide services free of cost within the warranty period at Bathinda and if service centre could not cure the defect, the mobile handset would be replaced with new one by opposite party No.3, on the recommendation of opposite party No.2. On this assurance, he purchased one dual Sim Sony Xperia T2 Ultra mobile handset for Rs.23,900/- vide bill No.2199/- dated 10.11.2014 from opposite party No.1. It is alleged that on opening of box, the complainant started the mobile handset, but to his utter surprise, the purpose for which it was purchased could not fulfill because it was not working properly as it started creating problem at the time of starting of its functions and display light was blinking and on its starting, all functions disconnected within few seconds without completion of work and it was switched on/off automatically and LCD was becoming black & white and it started 'hang', so it was creating difficulty in using. On 14.11.2014, he immediately approached opposite party No.1 and narrated it difficulties occurring in the mobile handset. He asked for replacement of the mobile handset with new one as assured by opposite party No.1 at the time of its purchase, but opposite party No. refused to replace the defective mobile handset with new one and told him to approach the service centre i.e. opposite party No.2 as it can recommend opposite party No.3 for replacement of defective mobile handset with new one, as per company return policy for new defective mobile handset. On that very day, he approached opposite party No.2 and narrated it all defects and difficulties in the mobile handset and requested it to replace the defective mobile handset with new mobile handset of same model as per returning policy for new defective mobile handsets, but instead of replacing the mobile handset, opposite party No.2 took the mobile handset in its custody vide job sheet dated 14.11.2014 and upgraded software and asked him to collect his mobile handset on 21.11.2014 and assured him that after upgradation of software, he would be able to use his mobile handset without any defect/difficulty. It is further alleged that on 21.11.2014, the complainant again approached opposite party No.2 to collect his mobile handset, it returned him the mobile handset in question with the assurance that all the defects have been removed in it and it is O.K, but when he started his mobile handset at service centre, the same problem re-occurred. Opposite party No.2 again took the mobile handset in its custody vide new job sheet dated 21.11.2014 and asked him that he will be informed telephonically. After sometime, the complainant again approached opposite party No.2, its officials conveyed him that there is manufacturing defect in it, which could not be cured and they have sent his mobile handset to company i.e. opposite party No.3 for its repair or replacement and they will contact him on his mobile on receiving the new mobile handset. It is further alleged that after some days, the complainant again approached opposite party No.2 and inquired about his repaired/new mobile handset replaced with defective one, but opposite party No.2 conveyed him that the mobile handset has not been received back and asked him to keep confirming through telephones number mentioned on job card. He many times tried to contact opposite party No.2 through telephonic calls on landline No.0164-2240757 mentioned on the job card, but nobody paid any heed to attend his calls. He again visited opposite party No.2 to enquire about his mobile handset/new replaced mobile handset, its officials in rustic manner refused to all query about the mobile handset and did not attend him in proper manner and neither repaired nor replaced his mobile handset with new one. It is further alleged that since 14.11.2014, the mobile handset is lying with opposite party Nos.2 and 3 and they have not given any satisfactory reply. Under compelled circumstances, the complainant purchased another mobile handset of same model of same company for Rs.23,000/- vide invoice No.1023 dated 26.11.2014 due to deficiency in service on the part of opposite party Nos.2 and 3. The complainant also got issued legal notice dated 4.12.2014 to call upon opposite parties to refund the price i.e. Rs.23,900/- alongwith interest @ 18% per annum, but to no effect. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and has claimed Rs.50,000/- as damages on account of mental tension, agony etc. and refund of Rs.23,900/- alongwith interest @ 18% per annum and Rs.11,000/- as litigation expenses. Hence, this complaint. Upon notice, none appeared on behalf of opposite party No.1. As such, ex-parte proceedings were taken against opposite party No.1. Opposite party No.2 was proceeded against ex-parte on 16.3.2015 and failed to file written version within stipulated period, but later on, opposite party No.2 joined the case proceedings through its counsel. Opposite party No.2 appeared through their counsel and contested the complaint by filing its written version. In written version, opposite party No.2 has raised the legal objections that the complaint is liable to be dismissed as the mobile handset is not purchased from the authorized dealer of opposite party No.3. As such, the complainant is not consumer qua opposite party No.2. He has not approached before this Forum with clean hands and is negligent and is intentionally not taking the delivery of his mobile handset from opposite party No.2. There is no manufacturing defect in the mobile handset as alleged by him. On merits, it is reiterated that there is no manufacturing defect in the mobile handset in question. It is pleaded that the complainant approached opposite party No.2 on 14.11.2014 and stated that he does not like the model he has purchased and wants to get refund of its price and sought upgrading of some software. Opposite party No.2 took the custody of the mobile handset and upgraded the required software at the same time, but the complainant did not come to collect his mobile handset and thereafter he came on 21.11.2014 and collected his mobile handset. Thereafter, after few hours in the evening, he again came and deposited his mobile handset with opposite party No.2 alleging some defects in it. After verifying the same, the service engineer of opposite party No.2 found no such alleged defect in the mobile handset. It is also asserted that there is no alleged defect on 14.11.2014 when the complainant visited opposite party No.2 for first time. A mere software upgrade was done and that also on the spot, but he himself took the delivery of the mobile handset on 21.11.2014. It is denied that he was conveyed regarding any manufacturing defect in the mobile handset. He never contacted opposite party No.2 and intentionally did not take delivery of his mobile handset. The mobile handset in question is ready to deliver in perfectly alright condition. After controverting all other averments, opposite party No.2 prayed for dismissal of complaint. Parties were afforded opportunities to produce evidence. In support of his version, the complainant tendered into evidence his own affidavits dated 28.7.2015 and 20.1.2015, (Ex.C1 and Ex.C2); photocopy of invoice, (Ex.C3 and Ex.C6); photocopy of retail invoice, (Ex.C4); photocopy of job sheet, (Ex.C5); photocopy of legal notice, (Ex.C7) and photocopy of postal receipts, (Ex.C8). In order to rebut the claim of complainant, opposite party Nos.2 and 3 tendered into evidence affidavit of Priyank Chauhan dated 7.9.2015, (Ex.OP3/1); photocopy of resolution, (Ex.OP3/2) and photocopy of important information, (Ex.OP3/3). We have heard learned counsel for the parties and gone through the file carefully. Learned counsel for complainant has reiterated his averments as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that admittedly, the complainant purchased new mobile handset on 10.11.2014. The complainant has alleged that shortly after purchase, number of defects were noticed in the mobile handset in question, which make it non-functional. He approached opposite party No.2 on 14.11.2014 i.e. within 4 days after purchase. Therefore, this fact itself shows that the mobile handset was not working properly. The contention of opposite party No.2 that it upgraded the software in the mobile handset on that very day i.e. 14.11.2014 and complainant did not come to collect his mobile handset stand belied from documentary evidence. The job sheet, (Ex.C4) was issued to the complainant. This document shows that the mobile handset was received on 14.11.2014 and delivery date and time was mentioned as 21.11.2014. This fact itself shows that needful was not done on 14.11.2014 as alleged by opposite party No.2. Opposite party No.2 has also taken plea that the complainant disclosed that he did not like the model. This fact also stand belied from the fact that he purchased the same model of mobile handset on 26.11.2014 for Rs.23,000/- vide invoice No.1023, (Ex.C6). In case, the mobile handset purchased on 10.11.2014 was not having any manufacturing defect or working properly, complainant was not required to purchase new mobile handset of the same model. This fact further corroborates the version of the complainant. It is further submitted by learned counsel for complainant that the manufacturing defect in the mobile handset is reported to opposite party No.2 within 4 days. Even as per 'DOA' Exchange Policy of opposite party No.3 available on internet, the product can be exchanged within 14 days from the date of purchase. Therefore, as per this policy also, the complainant was entitled to exchange the mobile handset in question with new one. He has produced on record legal notice dated 4.12.2014, (Ex.C7). In case, the mobile handset was ready with opposite party No.2, then it was expected to respond to legal notice and complainant could have been saved from this litigation. This fact also goes to show that opposite party No.2 has concocted a false story after receiving the notice of complaint filed by complainant. All these facts sufficiently prove the deficiency in service on the part of opposite party Nos.2 and 3 as they have failed to deliver the mobile handset in question to the complainant within reasonable time. Now, even repair or replacement of the mobile handset will not serve any purpose for the complainant. Therefore, the claimed relief be granted to him. On the other hand, learned counsel for opposite party Nos.2 and 3 has submitted that the complainant is required to prove his case by some evidence. The averments of the complainant are not to be accepted as gospel truth. More-so, the averments of the complainant stand belied by documentary evidence relied upon by complainant. Admittedly, the complainant has purchased the mobile handset on 10.11.2014 and for the first time, he had contacted opposite party No.2 on 14.11.2014. It cannot be believed that the complainant would not have used the mobile handset in question from 10.11.2014 to 14.11.2014. In case, the mobile handset was not functioning from the date of its purchase, then the complainant was not to wait for 4 days for approaching opposite parties. He himself has relied upon job sheets, (Ex.C4 and Ex.C5). As per job sheet, (Ex.C4), the mobile handset was found OK and only software upgradation was required. It is not the case of the complainant that opposite party No.2 has not correctly recorded these defects or complaints. He has also relied upon another job sheet, (Ex.C5). As per this job sheet, there was complaint regarding 'display light blinking' only. No other defect was reported by the complainant on 21.11.2014 also. In such circumstances, he was required to prove his allegations regarding other defects by some expert evidence. Even in the complaint, he has repeatedly alleged that he asked opposite party No.2 to repair/replace the mobile handset. This fact also shows that there was no manufacturing defect, entitling him for replacement of the mobile handset with new one or refund of its price. It is further submitted by learned counsel for opposite party Nos.2 and 3 that 'DOA' Exchange Policy is also not helpful. There are certain conditions, which included that the product has not visible sign of use, but in this case, the complainant has admittedly used the mobile handset from 10.11.2014 to 14.11.2014. We have given careful consideration to these submissions. There is no dispute regarding proposition of law that the complainant has to prove his averments by affirmative evidence. It is not disputed that the complainant purchased the mobile handset in question from opposite party No.1 on 10.11.2014. The controversy is regarding nature of defects and whether there is any manufacturing defect in the mobile handset or not. The complainant has first time reported the defects with opposite party No.2 on 14.11.2014, which leads to inference that he must have used the mobile handset in question from 10.11.2014 to 14.11.2014 before approaching opposite party No.2. The complainant himself has relied upon job sheet dated 14.11.2014. As per 'comments' of ASC (Authorized Service Centre), the mobile handset was found OK and software was to be upgraded. No other defect is mentioned in the mobile handset on 14.11.2014 as claimed by the complainant. It is not the case of the complainant that authorized service centre has not properly noted the defects pointed by him. The complainant has not challenged the correctness of job sheet, (Ex.C4), rather he has himself relied upon the same. He has also relied upon another job sheet dated 21.11.2014, (Ex.C5). As per this job sheet, he reported the defect regarding 'display light blinking', but in the complaint, he has mentioned number of defects, which are not recorded in the job sheet. He has also not produced any expert evidence to prove any other defect or manufacturing defect in the mobile handset in question. As per terms and conditions, (Ex.OP3/3), the warranty is regarding to the effect that the product is free from defects in design, material and workmanship at the time of its original purchase by a consumer. The complainant has failed to prove any defect in design, material and workmanship at the time of purchase of mobile handset in question. Therefore, in such circumstances, he is entitled only for repair of mobile handset and not for replacement or refund of its price. The case of the complainant is not covered under 'DOA' Exchange Policy for the reason that he has not purchased the mobile handset with these conditions and moreover there are certain conditions, which include that the product is not having visible sign of use. In this case, the complainant has purchased the mobile handset on 10.11.2014 and reported the defect in it on 14.11.2014. Therefore, it is to be inferred that he has used the mobile handset from 10.11.2014 to 14.11.2014. Now, the question is that whether there is deficiency in service on the part of opposite party Nos.2 and 3 or not. First time, the mobile handset in question was delivered to opposite party No.2 on 14.11.2014. The stand of opposite party No.2 was that needful was done on that very day. The complainant approached opposite party No.2 on 14.11.2014, but job sheet, (Ex.C4) shows that delivery date was mentioned as 21.11.2014. Therefore, this fact belies the version of opposite party No.2 that the needful was done on that very day. Again on 21.11.2014, the mobile handset was delivered to opposite party No.2. Of-course, the complainant reported the defect with opposite party No.2 regarding 'display light blinking' and delivery date and time is not mentioned in this document. The stand of opposite party No.2 is that the complainant failed to collect his mobile handset, but it has not produced any documentary evidence that he was ever intimated that the mobile handset in question is ready for delivery. The complainant has also produced copy of legal notice dated 4.12.2014. Opposite party No.2 has not produced any reply to legal notice to prove that it replied to legal notice intimating the complainant that his mobile handset is ready for delivery. Had opposite party No.2 responded to the complainant, he might have avoided to file this complaint. Therefore, all these facts prove that there is deficiency in service on the part of opposite party Nos.2 and 3. For the reasons recorded above, the complaint is partly accepted with Rs.3000/- as cost and compensation against opposite party Nos.2 and 3 and dismissed qua opposite party No.1 without any order as to cost. Opposite party Nos.2 and 3 are directed to handover the mobile handset in question to the complainant after repair as per terms and conditions of warranty. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Pronounced in open Forum:- 12-01-2016 (M.P Singh Pahwa) President (Sukhwinder Kaur) Member (Jarnail Singh) Member
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