Anonymous
Asked July 04, 2016

Defective Mobile device, what is my right as a consumer

  • 11 Answers
  • 1279 Views

It is Day 70 of my complaint on a defective mobile device. I noticed overheating in the device and submitted it on the date of purchase to the company for correction. 1. The company says their tests show no defect. I replicated the defect and asked the company to measure the temperature. The company said they are not equipped with an instrument to measure temperature of the device. The company agreed to my bringing a thermometer to measure the temperature. The company executive and I recorded a temperature of 110 deg F which is a health hazard for the user. Which safety regulation makes the company compliant when they do not have basic safety test instruments like the above? 2. On Day 30 the company support team refused to retain the device and asked me to call their telephonic support team in Bangalore which does not have a physical presence in Mumbai so how did the company think they could correct the problem in the device? Is there non-compliance in this case to my right to warranty? 3. On Day 40 I asked the customer care for guidance to register a legal complaint against the company. The advisor informed me the company had an internal procedure whereby customer care would register the legal complaint on my behalf with their legal department in Australia. This update was given to me across a week that the advisor is collating the required documentation and would be sent by EOD. Next day another advisor called me and when I asked him for confirmation that the legal complaint was indeed registered, he said there was no such procedure prevalent in the company? The company has made a fraudalent statement. Is this a criminal offence? I now understand I am protected by the Consumers Right Act 1986 and it means if I have purchased the product in Mumbai I register a legal complaint in Mumbai and not Australia. Thank you.

Answers 11

Default avatar
Srija Choudhury
  • The major safety precautions which are to be taken by the mobile manufacturing companies are
  • a) Specific Absorption Rate (SAR)

    b) Electromagnetic waves

    c) Radio waves

    Any kind of dysfunction in these three can cause a mobile phone to overheat.

    Specific absorption rate at which radio frequency energy is absorbed in human body over time and expressed as the power absorbed per unit mass. In India, the SAR limit for cellphones is 1.6 w/kg averaged over one gram of human tissue.[1]

     

    The issue of overheating may be caused by the battery or charger of the cellphone. The mobile company has simply provided you a defective piece and you can surely take action against the manufacturer in the District Forum at Mumbai for both poor services and selling defective goods under Consumer Protection Act, 1986.

     

  • If the company wants to shift the service to the telephonic support system in Bangalore and you feel aggrieved by such act, you have a right to take action against the Manufacturer for deficiency in services under Section 12 of the Consumer Protection Act, 1986.
  • The cause of action for this matter arose when you detected the defect and complained to the manufacturer for the first time and it keeps arising daily until the day such defect is fixed.

  • Fraud is not specifically defined under the Indian Penal Code but in generic sense according to Section 421-424 of the Act, it is dishonest concealment of facts for wrongful gain by one party. Fraud is also defined under Section 17 of the Indian Contract Act, 1872. Purchase of a product is in a sense a contract between the company and the customer.
  • According to the Indian Contract Act, fraud means and includes any of the following acts committed by a party to a contract, (or with his connivance, or by his agents), with intent to deceive another party or to induce him to enter into the contract;

     (1) something which is not true;

    (2) the active concealment of a fact while knowing or believing the fact;

    (3) a promise made without any intention of performing it;

    (4) any other act fitted to deceive;

    (5) any such act or omission as the law specially declares to be fraudulent.

     

    In your case, there has been active deception and concealment by the manufacturing company towards selling this defective product and continuous effort to hide such defect; hence in such case you can take a civil action against the manufacturing company.

     

    But these days, to avoid multiplicity of civil proceedings in civil courts these issues are majorly dealt by consumer courts only.

     

    A complaint to the forum consists of:

  • Heading and Title:       i.  Heading includes name of the Forum/Commission in which the complaint is made and the no. And year of complaint.       ii. Title includes the name, description, place of residence of the opposition party/parties.
  • The body of the complaint
  • Jurisdiction of the respective Forum/Commission
  • Relief claimed
  • Signature and Verification:       i.  Signature of the Complainant/Advocate       ii. Verification of the Complainant       iii. Mention of place and date of signing. 6. Affidavit, accompanying the complaint (not mandatory but preferred).
  • A copy of the complaint is to be forwarded to the opposite party, i.e., the seller in this case, so that they can know about it and reply the same. A Model complaint can be accessed here.

     

     

    1] http://www.dot.gov.in/sites/default/files/Annexures/Handbook.pdf

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar
      Anonymous
      Hi Srija, I was replying to your comments as a question instead of posting a comment. I wanted to thank you for your valuable information and for your time.
      Agree 0 Agrees over 1 year ago


    Default avatar
    Anonymous

    Hi Srija,

    Thank you so much for your time, this information - technical and legal is of immense help to me. A brand new phone and I submitted the defect on the date of purchase and with evidence provided of overheating. It is that sad.

    The last update that the company has given to me is that the phone works fine in their service center so my replicating the defect to show overheating to a 110 deg F will not be considered. My argument from the beginning has been very basic - if the said phone works in the service center then the company is committed to also see that the phone works outside the service center. The company says we cannot do anything more. An analog to this would me a car manufacturer saying that the car brakes work fine in the car service center however if the brakes do not work for the consumer on the roads that is the consumers problem.

    If you agree, can you guide me as to how I can contact you through lawfarm.in

    Once again, Thank you very much. 

    Warm Regards.

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar
      Thank you for your appreciation. We are glad we could help you out with technical and legal information. Please let us know in case you require professional legal help, in which case we may connect you with a competent lawyer. You may post details of your case on the "Find a lawyer" section of our website and get quotations from different lawyers. Here is the link: http://lawfarm.in/in/find-lawyer
      Agree 0 Agrees over 1 year ago


    Default avatar
    Anonymous

    Thank you,

    In Post a Case it shows state as Singapore?

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar
      Hello, On the top right, there is the option of switching between India and Singapore. Perhaps the country is set as Singapore. Click on the flag and change it to India. Let us know if this helped. With regards, Lawfarm Team
      Agree 0 Agrees over 1 year ago


    Default avatar
    Anonymous

    Hi, The flag is available in the page https://lawr.co/in/legal_cases/new. What type of Law do you need. I do not see Consumer Protection - Consumer Rights. I have selected Others/General. The select options under What type of case is it? I had to select Socities and this too is not the correct option but it was mandatory. 

    Thanks.

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar

      Dear Lalitha

      Thank you for your feedback.

      First, it would be better to go to this website http://lawfarm.in/in/legal_cases/new instead of the Lawr address you had found.

      The appropriate category for your case may be found by way of the following: a) Under "What type of Lawyer do you need?", select Disputes/Litigation. b) Under "What type of case is it?", select "Consumer Law".

      Hopefully this helps. If you have any further difficulties or queries, we would be most happy to assist. We look forward to receiving the details of your case and hopefully in successfully finding you a lawyer!

      Regards Lawfarm team

      Agree 0 Agrees over 1 year ago

    • Default avatar
      Anonymous
      Hi Srija, one more question please this phone is a replacement phone for my old phone. I did not get a sealed pack, what does this imply? Does it mean the phone i got is not a new phone but a refurbished phone? Thank you.
      Agree 0 Agrees over 1 year ago


    Default avatar
    Anonymous

    Perfect. Thank you. I would also like to reach out to Ms. Srija Choudhury for a preliminary discussion. How can I do so?

    Thank you for your time.

    Agree Comment 0 Agrees over 1 year ago

    Default avatar
    Anonymous

    Hi Lawfarm,

    India does not allow sale of refurbished mobile phones. If a company then still goes ahead and sells a refurbished mobile phone? What is the implication? What can the consumer do?

    Thank you.

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar
      Refurbished phones are those which are returned to the seller due to some defect and are then repaired by the seller to correct the defect and restore the quality and functioning of the phone. India restricts the import of used, second hand or refurbished phones, in accordance with the Foreign Trade Policy of India, in absence of special authorization by the government. In case of any contravention regarding imports, S. 11 of the Foreign Trade (Development and Regulation) Act, 1992 provides for a penalty – 1. Not exceeding one thousand rupees; or 2. Five times the value of goods in respect of which the contravention is made or attempted; Whichever of the above two value is greater. In case of domestic products, no such ban or illegality is associated with refurbished goods or products. Hence, companies selling domestic refurbished phones cannot be held legally liable. However, if a company sells a refurbished phone, claiming it to be a new phone, then the consumer can file a suit before the District Forum , or the State Commission or the National Commission , based on their respective jurisdictions and the given case. The major objective behind the ban over import of refurbished phones is reduction of electronic, hazardous wastes within the Indian Territory. It is believed that refurbished mobile phones have a shorter life span and are reduced to electronic wastes more rapidly, having an adverse impact on the environment. This objective is lost when it comes to the sale of domestic refurbished phones as it is merely a circulation within the territory of the country and does not add on to the pile of wastes.
      Agree 0 Agrees over 1 year ago

    • Default avatar
      Anonymous

      Thank you Apoorwa Iyer, the reason I suspect my mobile phone may be a refurbished phone because the mobile company is refusing to share the manufacture month and year. I purchased the mobile phone on a replacement scheme returning my old mobile phone. Initially, I wanted to find out the year of manufacture to check if the manufacture year could be the source of the defect. i.e. old product. What is the non-compliance by the company for not sharing the manufacture year with me. I have this on record where I asked the support chat executive to email me the entire chat where I was told they do not have the same and it may be because mine is a replacement model and I have this chat from their email server to my email account. My understanding, data integrity of all product details of the said product during its life cycle is legally required and companies have to comply by this law. Thank you for your time.

      Agree 0 Agrees over 1 year ago

    • Default avatar
      Not sharing complete information of the product sold is itself a failure, on the part of the seller, to provide adequate service. S. 41 of Sale of Goods Act, 1930 (referred to as The Act herein) provides you the right to examine products before accepting and the seller is bound to provide you with adequate opportunity for such examination for the purpose of ascertaining whether it is in conformity with the contract. The contract of sale was established between you and the company the moment you accepted the offer of purchasing the phone in return of your old phone (consideration), as per S. 5 of The Act and by wrongfully providing you the old phone the company has breached the terms of the contract. For this breach of contract, S. 58 of The Act , provides the courts with the power to direct specific performance of the contract. However, there is no specific law dealing with the disclosure of manufacturing date but in general it is the duty of the seller to share all crucial information regarding the product with the buyer. To gather solid proof regarding the defect of the mobile phone you can file an RTI (Right To Information) report under S. 2(f) of the RTI Act 2005. The RTI largely covers the workings of public organizations: however, private entities are covered under these two sections. RTI can be filed either through online portal or through written procedure and 30 days is the usual time limit to get the information. The company would not avoid your demand after the filing of RTI for fear of both its market goodwill and further legal proceedings.
      Agree 0 Agrees over 1 year ago


    Default avatar
    Anonymous

    Hi Lawfarm,

    I have a defect in my mobile device, a defect that has been replicated in the presence of the company support executive however the company refuses to accept it. Is it possible for me to get credibility for the evidence from a third party authority i.e replicate the defect and get the evidence recognised as 'Exists' and I send this data to the company to further my case before I register the complaint with the consumer court.

    Thanks.

    Agree Comment 0 Agrees over 1 year ago
    • Default avatar
      Anonymous
      Thank you, Apoorwa Iyer. My complaint is of 72 days where the mobile phone company categorically refused acknowledgement of evidence on repeated usage of mobile phone in the service center hence I am very serious in gathering information to make my complaint strong n the District Forum. I have not been able to use mobile phone even for an hour comfortably from the time of purchase. If my layman understand of the S. 65 A of the Indian Evidence Act, 1872 is correct, then the photographs taken from a mobile phone as evidence by me shows the digital thermometer held on the defective mobile phone a temperature of 108degF. To give this evidence mobile company credibility, I had made sure the mobile company executive was present with me. The service center refused to allow the executive to be with me for the entire time required, however after 10, 20 minutes i called the service center executive to hold the defective phone and thermometer so that I could take a photograph. Thank you for your time.
      Agree 0 Agrees over 1 year ago

    • Default avatar
      You can send this data to the company initially as this is evidence enough, for the purpose of the company, to the ‘existence’ of the defect. In most cases, companies rectify the defects once brought to significant notice. In case the company refuses to rectify the defect, you can file a complaint against the company before the District Forum , or the State Commission or the National Commission , based on their respective jurisdictions and the present case. However, this might be an extremely expensive and time consuming procedure. For ensuring that the evidence provided by you is accepted by the court you can refer to S. 65A of the Indian Evidence Act, 1872 , according to which, the contents of electronic records may be proved in accordance with the provisions of section 65B. The best way to provide credibility to this evidence would be to store or copy this defect in optical or magnetic media produced by a computer or in simpler words in the form of computer output. This, as per S. 65B the Indian Evidence Act, 1872 , would make this evidence as an admissible document and proof of the existing defect. Some essential provisions for satisfaction of this condition are- 1. The said computer output was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; 2. during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; 3. throughout the materiel part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and 4. the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities. If you are unable to do so then you might approach the court with the available evidence, making sure that this third party has the technical authority necessary for the case and also that the proof of replication ‘exists’ is strong enough for the said case. The court, relying upon the credibility of the evidence, would take reasonable actions against the company.
      Agree 0 Agrees over 1 year ago

    • Default avatar
      Anonymous

      Hi Apoorwa, the evidence submitted by me is recorded in Fahrenheit which is 108degF. 1. The company refers to its URL where it says if the temperature is NOT 'within permissible limit' a warning message will be displayed in the mobile phone. In my case of overheating within minutes of usage to 108degF and still there is no warning message. I informed the company across 72 days that the temperature feels very hot to my face and ears and not Safe and if the company feels this is within their permissible limit they should mention in the service letter that the temperature of 108degF is safe, the company refuses to do so. 2. In my legal complaint I have mentioned that the company should now release what is the range of the within permissible limit. I have already asked across 72 days for this information but they have refused hence the escalation to a legal complaint but the company says this information is Private and Confidential. My layman understanding says that this information is now highly relevant to my complaint which is not given due consideration from a consumer Safety perspective and the company tells me to use this mobile phone as according to them there is no defect. My explanation for want of this information is that I need the URL information of within permissible limit to be presented in the same unit of measurement i.e. Farenheit because all other information in the URL is in Farenheit so that I can compare the numeric 108degF to their range of within permissible limit. What is your view when you study the above information from a legal perspective. Thank you once again for your time.

      Agree 0 Agrees over 1 year ago

    • Default avatar
      If the company states that a warning message would pop up whenever the phone crosses the ‘permissible limit’ then it clearly is not a very private and confidential topic. As you are facing difficulties due to overheat of your phone and no such message is visible, then it is your right to know the standards set by them as it is adversely affecting you as a consumer. Generally, during normal use, a properly functioning Smartphone does not cross 122-130 F and extensive graphic usage might cause an increase in the temperature to about 140 F. In any case, 180F is far above the normal expected temperature and might be dangerous for the user and nearby people as well. The evidence gathered by you is solid proof towards both the deficiency in service by the company and also hindrance posed by it towards rectification of damage. You can very well approach the District Forum with this evidence to substantiate your case. Mostly, once the proceeding initiates, the court would be satisfied with your evidence gathered and if it feels necessary it would direct the company to produce the said URL information of ‘permissible range’ as per their company policy. However, if you wish to further solidify your evidence and gather the URL information before the proceeding begins, you can file an RTI (Right To Information) report under S. 2(f) of the RTI Act 2005. The RTI largely covers the workings of public organizations: however, private entities are covered under these two sections. RTI can be filed either through online portal or through written procedure and 30 days is the usual time limit to get the information.
      Agree 0 Agrees over 1 year ago

    • Default avatar
      Anonymous
      Thank you very much for the valuable information and for your time. I will approach RTI as advised.
      Agree 0 Agrees over 1 year ago

    • Default avatar
      Anonymous
      Hello After the legal notice is sent out and there is no response from the company. 1. How much time does it take the lawyer to register the complaint with the consumer court in Bandra? 2. How much time does it take the court to issue a decision after hearing both sides. Thank you,
      Agree 0 Agrees about 1 year ago

    • Default avatar
      Anonymous
      Thank you admin lawfarm. The FAQs is a big help.
      Agree 0 Agrees about 1 year ago

    • Default avatar
      You can file your consumer complaint online as well. You will have to register yourself and sign in at www.consumerhelpline.gov.in . For more details and procedure on this, visit Download and read the FAQs, they are very helpful. Link is: http://consumerhelpline.gov.in/Consumerhelpline%20User%20Manual-Internet%20User.docx Hope this helps. Regards.
      Agree 0 Agrees about 1 year ago


    Default avatar
    Anonymous

    Hello,

    After sending out the legal notice with no response for 7 days as stated in the legal notice, what is the  time period to file the case with the consumer court post sending the legal notice.

    Thank you.  

    Agree Comment 0 Agrees about 1 year ago
    • Default avatar
      Hello Lalitha, According to the Section 24A of the Consumer Protection Act, you must file your complaint within 2 years from the date on which the cause of action has arisen. Hope this helped. Let us know if you have any more clarifications, we will be happy to help. Regards.
      Agree 0 Agrees about 1 year ago


    Default avatar
    Anonymous

    Thank you admin lawfarm, can you please advise on the 3 questions below,

    I have initiated the process to raise a complaint against a company which is not accepting responsibility for a defective product with the consumer court on 11th July. The legal notice was sent out on 25th July for the company to revert within 7 days. It is today 27-Sep and my lawyer is still working on the draft complaint required to register the case with the Mumbai Consumer Court?

    1. How much time would it take to register complaint with consumer court after legal notice has been sent?

    2. How much approximate time does a consumer court in Mumbai take to reach a decision?

    3. After sending out the legal notice with no response for 7 days as stated in the legal notice, what is the  time period to file the case with the consumer court post sending the legal notice.

    Thank you,

    Agree Comment 0 Agrees about 1 year ago

    Hello Lalitha,

    Here are the answers to your queries:

    1. How much time would it take to register complaint with consumer court after legal notice has been sent?

    Since there is an option to do so online, it will take a mere few minutes to register your complaint. 

    2. How much approximate time does a consumer court in Mumbai take to reach a decision?

    Within 21 days of your complaint the consumer forum which you approach, has to give 30 days to the defendant to appear before the court and present their case. So it will take a minimum of 30 days from the day that summoning notice is sent to the defendant . 

    Thereafter, both sides have to present their side and evidence, the evidence has to be studied, etc. The Consumer Protection Act mandates that the District Forum must decide the case within 3 months (in case analysis or testing of commodities is not required) or within 5 months (in case analysis or testing of commodities is required). Adjournments are not allowed unless "sufficient cause" is shown, and those reasons must be recorded as well. Delays and reasons for such delays (beyond the 3/5 month mandate) must also be also recorded by the Forum.

    3. After sending out the legal notice with no response for 7 days as stated in the legal notice, what is the  time period to file the case with the consumer court post sending the legal notice.

    You can file your case any time within 2 years of the date when the cause of action (for which you are approaching the forum) arose. 

     

    Agree Comment 0 Agrees about 1 year ago
    Consult Now
    • Default avatar
      Anonymous
      Thank you very much. The reason of the first point is that it is nearly 2 months since sending the legal notice with a 7 day time for the company to respond and my lawyer is still working on what i am told is 'draft of the complaint' required for the registration.My apologies, I did not phrase my 1st question correctly. It should have been how much time does it take to prepare the complaint document over and above the legal notice to be used in registration. Now I understand 2 months is not required for drafting the complaint when the legal notice covers everything and that is the basis to take the case forward.
      Agree 0 Agrees about 1 year ago

    • Default avatar
      Anonymous
      Thank you for detailed response. It has helped me.
      Agree 0 Agrees about 1 year ago


    Default avatar
    Anonymous

    Hi,

    Can my lawyer initiate communication with the company who has been served the legal notice without keeping me informed. Is it correct when I say that my lawyer should discuss this initiation of communnication with me before reaching out to the said company? Should I not be immediately informed of all telephonic and email communication as it pertains to my case.

    Thank you.

     

    Agree Comment 0 Agrees about 1 year ago

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