State Consumer Disputes Redressal Commission
Reliance Retail Ltd. & Ors. vs Sh. Vinay Soni. & Anr. on 12 June, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 30/2018
Date of Presentation: 22.02.2018
Order Reserved on : 09.04.2018
Date of Order : 12.06.2018
......
1. Reliance Retail Limited through its Managing Director 3rd
Floor Court House Lokmanya Tilak Marg Dhobi Talao
Mumbai-400002.
2. Reliance Retail Limited through its Manager 71 Middle
Bazar C/o. Rajeev Sood & Co. Shimla H.P.
3. JIO Customer Care Centre through its Manager Shri Mahesh
Raj Tower Fortis Building Hospital Dharamshala Road
Kangra H.P.
...... Appellants/Opposite Parties No.1 to 3
Versus
1. Shri Vinay Soni son of late Shri Om Prakash Soni R/o. VPO
Charri Tehsil Shahpur District Kangra H.P.
......Respondent No.1/Complainant
2. Rajeev Communication through its Proprietor Jauta Tehsil
Nurpur District Kangra H.P.
......Respondent No.2/opposite party No.4
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Vipan Negi Senior Advocate with Mr.
Rajender Singh Thakur Advocate.
For Respondent No.1 : In person.
For Respondent No.2 : Ex-parte.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018)
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 15.01.2018 passed by Learned District Forum in consumer complaint No.85/2017 titled Vinay Soni Versus Reliance Retail Ltd. & Ors.
Brief facts of consumer complaint:
2. Shri Vinay Soni filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that opposite party No.1 is manufacturer of mobile phone. It is pleaded that opposite party No.2 has various authorized dealer and service centre in Himachal Pradesh. It is pleaded that complainant purchased mobile phone for his personal use in consideration amount of Rs.13500/-(Thirteen thousand five hundred) from opposite party No.4 vide bill No.035. It is pleaded that after seven months mobile phone started hanging problem in applications within warranty period and battery of mobile phone also started problem. It is further pleaded that complainant approached opposite party No.4 and opposite party No.4 advised complainant to visit Jio customer care centre at Kangra. It is pleaded that thereafter complainant visited twice customer care centre on 10.12.2016 and 16.02.2017. It is pleaded that service 2 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) engineer returned the handset after update of software but hanging problem of mobile phone and battery problem of mobile phone was not rectified. It is pleaded that thereafter complainant again visited opposite party No.3 on 01.05.2017 with battery problem and hanging problem of mobile phone. It is pleaded that opposite party No.3 replaced battery and charged Rs.921/-(Nine hundred twenty one). It is pleaded that problem was not rectified and mobile phone started automatic switch off problem. Complainant requested the opposite parties through repeated emails to rectify the problems of mobile phone but opposite parties did not rectify the problem. It is further pleaded that opposite parties have sold defective mobile phone to complainant with manufacturing defect. It is pleaded that complainant visited opposite party No.3 for about four times and also sent seven emails but opposite party No.3 did not rectify the defect and committed deficiency in service. Complainant sought relief of refund of amount of Rs.13500/-(Thirteen thousand five hundred) with interest @ 12% per annum w.e.f. 16.02.2016 till realization. In alternative complainant sought relief to the effect that opposite parties be directed to provide new mobile phone of same model to complainant. In addition complainant also sought compensation for mental and physical harassment to the tune of Rs.10000/-(Ten thousand). Prayer for acceptance of consumer complaint sought.
3
Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018)
3. Per contra version filed on behalf of opposite parties No.1 to 3 pleaded therein that District Consumer Forum Kangra has no territorial jurisdiction to entertain and decide consumer complaint because warranty card provides exclusive jurisdiction of courts situated at Mumbai. It is pleaded that opposite party No.1 is not manufacturer of smart phone. It is pleaded that opposite party No.1 has imported the product and sold and distributed product in India through its distribution channel. It is pleaded that product was properly checked and thereafter purchased by complainant. It is further pleaded that battery of mobile phone was replaced with charger after expiry of warranty period of battery. It is pleaded that there was no manufacturing defect in the mobile. Prayer for dismissal of consumer complaint sought.
4. Opposite party No.4 did not appear before learned District Forum and did not file any version. Learned District Forum proceeded ex-parte against opposite party No.4.
5. Learned District Forum ordered opposite parties jointly and severally to replace the mobile phone with new one of the same value or in alternative to refund costs of mobile phone to complainant within thirty days from the receipt of copy of order. Learned District Forum also ordered opposite parties to pay sum of Rs.3000/-(Three thousand) as compensation to complainant towards mental harassment. 4
Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) Feeling aggrieved against order passed by Learned District Forum opposite parties No.1 to 3 filed present appeal before State Commission.
6. We have heard learned advocate appearing on behalf of appellant and co-respondent No.1 in person and we have also perused entire record carefully. None appeared on behalf of co-respondent No.2 and co-respondent No.2 was proceeded ex-parte by State Commission.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit Ext.CW-1 in evidence.
There is recital in affidavit that deponent purchased mobile phone from opposite party No.4 in consideration amount of Rs.13500/-(Thirteen thousand five hundred) vide bill No.035. There is recital in affidavit that after seven months of purchase hanging problem occurred in mobile phone and problem of battery also occurred in the mobile phone. There is recital in affidavit that deponent approached opposite party No.4 who advised to visit customer care centre at Kangra. There is further recital in affidavit that deponent visited opposite party No.3 four times and also sent seven emails but 5 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) defects was not removed by opposite parties. There is recital in affidavit that opposite parties have committed deficiency in service.
9. Complainant also filed affidavit of Kundan Goswami Ext.CW-2 in evidence. There is recital in affidavit that complainant visited service centre of opposite parties. There is recital in affidavit that mobile set was repaired four times but battery problem and hanging problem of mobile phone was not resolved. State Commission has perused all the annexures filed by complainant carefully.
10. Opposite parties No.1 to 3 filed affidavit of Shri Ankur Goswami JCM of Reliance Company in evidence. There is recital in affidavit that complainant did not approach learned District Forum with clean hands and suppressed material facts. There is further recital in affidavit that complainant visited opposite party No.3 on 10.12.2016 after ten months from date of purchase of mobile phone. There is recital in affidavit that after inspection and verification of mobile phone by opposite party No.3 no hardware problem in mobile phone was observed. There is recital in affidavit that complainant did not update software of mobile phone on periodic basis. There is recital in affidavit that complainant was informed that he would have to bear costs of replacement of battery of mobile phone as per condition of warranty. There is recital in affidavit that opposite party No.3 had 6 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) replaced the battery of product on chargeable basis. There is further recital in affidavit that opposite parties did not commit any deficiency in service. There is further recital in affidavit that there was no manufacturing problem.
11. Opposite party also filed affidavit of Shri Amit Arora authorised signatory of Reliance Retail Ltd. There is recital in affidavit that learned District Forum Kangra has no territorial jurisdiction to entertain the consumer complaint because as per warranty card only jurisdiction of courts situated in Mumbai lies. There is recital in affidavit that complainant visited opposite party No.3 for first time on 10.12.2016 after ten months of purchase of mobile phone. There is further recital in affidavit that charges for replacement of new battery claimed because claim of defective battery was furnished after expiry of warranty period of battery. There is recital in affidavit that standard warranty of the product excluding battery, charger & USB cable was for a period of twelve months. There is recital in affidavit that no manufacturing defect was proved on record by way of evidence of expert. There is recital in affidavit that there was no negligence in service on part of opposite parties No.1 to 3.
12. Submission of the learned Advocate appearing on behalf of appellants that as per terms and conditions of warranty card annexure-R8 jurisdiction of learned District Forum Kangra H.P is barred and on this ground appeal be 7 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) allowed is decided accordingly. It is proved on record that mobile phone was purchased by complainant in consideration amount of Rs.13500/-(Thirteen thousand five hundred) on dated 16.02.2016 at place Jaunta Tehsil Nurpur District Kangra H.P. Consideration amount of Rs.13500/-(Thirteen thousand five hundred) was paid by complainant to authorized dealer i.e. Opposite party No.4 on dated 16.02.2016 at place Jaunta Tehsil Nurpur District Kangra H.P. As per Section 11 of Consumer Protection Act 1986 consumer complaint could be filed at a place where cause of action wholly or in part arises. Even as per warranty condition warranty service for the product shall be restricted to the place where seller or its authorized distributors originally sold the product. In view of the fact that product was originally sold to complainant at place Jaunta Tehsil Nurpur District Kangra H.P. in consideration amount of Rs.13500/-(Thirteen thousand five hundred) it is held that learned District Forum Kangra (H.P) has territorial jurisdiction to entertain and decide the consumer complaint.
13. Submission of learned Advocate appearing on behalf of appellants that warranty period of battery was six months and consumer complaint was filed on 10.12.2012 after ten months of sale of mobile phone and on this ground appeal be allowed is decided accordingly. We have carefully perused warranty condition issued by opposite parties No.1 to 8 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018)
3. As per warranty condition warranty period of battery is six months. In view of the fact that complaint relating to battery was not filed within six months from purchase and in view of the fact that mobile phone was purchased on dated 16.02.2016 and complaint of battery was filed on 10.12.2016 after ten months it is held that opposite parties No.1 to 3 are not under legal obligation to repair or replace the battery free of charges after the expiry of warranty period of battery.
14. Submission of learned Advocate appearing on behalf of appellants that opposite parties No.1 to 3 are not under legal obligation to replace new mobile phone because guarantee was not issued by opposite parties No.1 to 3 to complainant and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that guarantee and warranty are entirely two different concepts under law. It is held that in guarantee entire replacement is permissible free of costs during guarantee period by the manufacturer. It is held that in warranty concept replacement of only defective parts is permissible under law. In view of the fact that guarantee card was not issued to complainant by manufacturer and in view of the fact that only warranty card was issued by manufacturer to complainant it is held that manufacturer is not under legal obligation to replace new mobile phone to complainant.
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Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018)
15. Submission of learned Advocate appearing on behalf of appellants that manufacturing defect is not proved on record by way of evidence of expert and on this ground appeal be allowed is decided accordingly. It is well settled law that manufacturing defect could be proved by way of expert evidence only. Complainant did not adduce any expert evidence relating to manufacturing defect in the mobile set. Hence it is held that plea of complainant that there was manufacturing defect in the mobile phone is defeated on the concept of ipse dixit (An assertion made without proof). See 2018(2) CLT 230 NC Pawan Kumar Versus M/s. Nissan Motors India Pvt. Ltd. & Ors. See 2017(3) CPR 35 NC Mahender Kumar Versus Hero Honda Motors Ltd. and other.
16. Submission of learned Advocate appearing on behalf of appellants that there was no hanging problem in the mobile phone and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that opposite parties were under legal obligation to remove the defect of hanging problem free of charges during warranty period because report of hanging problem was given by complainant within ten months after purchase and warranty of product excluding battery, charger, USB cable was twelve months commencing from date of original retail purchase. Opposite parties did not remove defect of hanging problem occurred during warranty period and committed deficiency in service. 10
Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018)
17. Submission of learned Advocate appearing on behalf of appellants that hanging problem and battery problem were removed to the satisfaction of complainant and on this ground appeal be allowed is decided accordingly. Opposite parties did not examine service engineer who had examined hanging problem in mobile set. Opposite parties had only examined Shri Ankur Goswami and Sh. Amit Arora. Shri Ankur Goswami and Shri Amit Arora are not service engineers of the opposite parties. No reasons assigned by the opposite parties as to why opposite parties No.1 to 3 did not file affidavit of service engineer who had personally examined hanging problem in the mobile phone. Hence adverse inference is drawn against opposite parties No.1 to 3 for non filing of affidavit of service engineer. It is held that Shri Ankur Goswami and Shri Amit Arora who are representatives of opposite parties have filed affidavits on the basis of derived knowledge only and it is not expedient in the ends of justice and on the principle of natural justice to rely upon the affidavits filed on the basis of derived knowledge relating to controversial facts.
18. It is well settled law that documentary evidence under Consumer Protection Act 1986 relating to controversial document could be given by way of affidavit of a person who had signed the document because as per section 13(4)(ii) of Consumer Protection Act 1986 documentary evidence are 11 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) admissible under Consumer Protection Act 1986 which are producible as evidence. It is well settled law that controversial facts of the contents of documents are producible in evidence as per Consumer Protection Act 1986 by way of affidavit of a person who had signed the document.
19. Submission of learned Advocate appearing on behalf of complainant that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. It is held that terms and conditions of warranty issued by manufacturing company is binding upon both the parties. It is held that no one could be allowed to approbate and reprobate the terms and conditions of warranty card at the same time. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir. It is held that complainant is entitled for replacement of defective part only and it is held that complainant is legally entitled for reasonable compensation for mental harassment and agony. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
20. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum that opposite parties would jointly and severally replace mobile phone with new one of the same value or would refund costs of the same to complainant within 30 days from the receipt of copy of order is set aside. It is ordered that opposite parties would 12 Reliance Retail Ltd. & Ors. Versus Vinay Soni & Anr.
(F.A. No.30/2018) jointly and severally replace the defective parts of mobile set except battery, charger, USB cable within one month after the receipt of certified copy of order of State Commission free of charges. Order of learned District Forum relating to compensation to complainant towards mental harassment to the tune of Rs.3000/-(Three thousand) is affirmed. Sale bill No.035 dated 16.02.2016 Annexure-AI will form part and parcel of order. Order of learned District Forum is modified to this extent only. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 12.06.2018 KD* 13