Sri Pawan Kumar Sharma, aged about 49 years
S/o: Sri Chirannilal Sharma,
At:Dahanigadia, PO: Charampa, Dist:Bhadrak,
…………………….Complainant
(Vrs.)
1. Proprietor, Samsung Smart Cafe Selection,
Barpathara, New OSL Hyundai Show Room,
Buxi Bazar, Cuttack-753001
2. Gopiranjan Nandi
Proprietor- Samsung Care
At:Mathasahi, PO/Dist:Bhadrak
3. Proprietor, Modern Technology,
Near SL Plaza, Near DIC Chhak Sqr.
O.T.Road,Balasore
4. Samsung India Electronics Pvt.Ltd.,
B-1, Sector 81, Phase-2, Noida District
Goutam Budha Nagar, Uttar Pradesh
………………………..Opp.Parties
Order No.8 dt.27.04.2015:
The case of the Complainant is that he is an advocate by profession and being motivated by the advertisement of the Samsung Company having different facilities in the mobile hand set, the Complainant due to his busy engagement opted to purchase one Samsung Mobile set. After due discussion and deliberation the Complainant purchased Samsung Galaxy Grand Neo 9060 having IMEI No.352742064252373 for a consideration amount of Rs.17,000/- on 26.06.2014 from O.P.No.1. The O.P.No.1 also supplied warranty card which provides free service, repair & replacement of the mobile set within one year of purchase. During continuance of warranty period, on 20.09.2014 the mobile set started to hang on. Thereafter, it started to be on & off automatically without command. With much difficulty the Complainant used the set but occasionally the same defect arose for which the Complainant had been to the authorized service centre of O.P.No.2 and requested to rectify the defects. But the O.P.No.2 verbally intimated the Complainant that after being used for some days; the set will function properly and told that the defects are very minor in nature. On 01.11.2014 the Complainant found his mobile dead. The mobile could not function and the Complainant could not keep touch with his near & dear ones and was deprived of keeping contact with many persons due to the defect in the mobile set. The Complainant apprehended that the mobile set having inherent manufacturing defect has been sold to him by O.P.No.1. On 03.11.2014 the Complainant had been to O.P.No.2 along with his friend to get the defects of the mobile checked and remove the defects on it within the warranty period. The O.P.No.2 after taking the mobile set from the Complainant and verifying the same told that his service centre has been newly opened, the Service Engineer is absent for which repair or replacement cannot be done quickly and total infrastructure of the authorized service centre has not yet been completed. O.P.No.2 advised the Complainant to get the mobile repaired/replaced at Balasore where service centre of Samsung Mobile with all facilities are available. Finding no other alternative the Complainant had been to Balasore on 04.11.14 and handed over the mobile set to O.P.No.3 for removal of the defects in the mobile set and to get it operated. It has been alleged by the Complainant that though the defect arose within the warranty period and the O.Ps are duty bound to repair or replace the same, without any just and reasonable cause, the O.P.No.3 vide letter dt.04.11.2014 and work order No.4184429443 intimated the Complainant that the estimated repair cost is Rs.10,862.43 paise and the Complainant was required to confirm the same and thereafter they will carry out the repair. In that letter it has also been specifically mentioned that in case you do not want to carry out the repair, we are requesting you to take delivery of your handset within 7 days. Thus, the O.Ps are negligent in providing proper service to the Complainant and put him to a loss of Rs.17,000/- by selling a mobile set having inherent manufacturing defect. So the Complainant filed this case on 12.01.2015 praying for a direction to the O.Ps to repair the mobile set or to give a new one or to refund the cost of the mobile i.e. Rs.17,000/- besides compensation of Rs.20,000/- towards mental agony and Rs.2,000/- towards expenditure in running to O.Ps 2 & 3.
O.P.No.1 neither appeared nor filed written version. Hence, O.P.No.1 has been set exparte as per order dt.13.03.2015.
O.Ps 2, 3 & 4 filed joint written version pleaded that the Complainant has never approached the O.P.No.2 for repairing his mobile handset nor the O.P.No.2 has ever advised the Complainant to approach the O.P.No.3 for repairing. It is true that the Complainant deposited the handset with O.P.No.3-Service Centre on 04.11.2014 in a completely damaged condition. The Complainant disclosed to the O.P.No.3 that he is a resident of Nua Bazar, Balasore. However, after verifying the handset the Service Engineer found the handset was damaged due to water logging inside. Accordingly, the service request was prepared on 04.11.2014 and the Complainant also singed the acknowledgement letter acknowledging the fact that the set was damaged with his knowledge and he gave his consent to repair the handset without any claim of warranty. Thereafter, the Service Engineer prepared an estimate for repairing the handset amounting to Rs.10,862.43 and the Complainant did not agree for repairing the handset on chargeable basis for which the handset could not be repaired. Since under the warranty conditions, warranty is not applicable to a damaged handset, therefore the O.P.No.3 raised an estimate for replacement of parts and repairing of the handset but the Complainant did not agree to repair the handset on chargeable basis. The Complainant took away the handset and thereafter filed the present case. It has been further stated by the O.Ps that the handset which was damaged due to water logging is not a manufacturing defect. Since the handset has been damaged by improper use and water logging, the warranty is not applicable and therefore the O.Ps are not legally bound to replace the handset or to refund the purchase price to the Complainant. Hence, the O.Ps 1,2 & 3 prayed for dismissal of the complaint.
We have heard the Counsel for the parties and have gone through the evidence, and record of the case, carefully. The Complainant has filed Bill No.508 dt.26.06.2014 of O.P.No.1 showing purchase of Samsung Galaxy Grand Neo(9060) having IMEI No.352742064252373 on payment of consideration amount of Rs.17,000/-. The Complainant has filed customers details-cum-warranty card of Samsung India Electronics Pvt. Ltd. . Condition No.10 of the warranty card says that the Company guarantees to the purchaser that the product- mobile phones carry 1(one) year warranty commencing from the date of purchase.Annexure-3 is the Service Request dt.04.11.2014 of O.P.No.3 and Annexure-4 is the estimate dt.4.11.2014 granted by O.P.No.3 demanding Rs.10,862.43 towards repairing of mobile handset in question.
It is submitted by the Complainant that he had purchased Samsung Galaxy Grand Neo 9060 mobile handset from O.P.No.1 on 26.06.2014. After about 3 months of its use, on 20.09.2014 the mobile set started to hang on. Thereafter, it started to be on & off automatically without command. He managed to use the set but occasionally the same defect arose for which the Complainant visited the authorized service centre at Bhadrak(O.P.No.2) for removal of defects. The O.P.No.2 without repairing intimated the Complainant that after being used for some days; the set would function properly and told that the defects are very minor in nature. Complainant found his mobile handset dead on 01.11.2014. The mobile handset could not function and the Complainant could not keep touch with others. On 03.11.2014 the Complainant met O.P.No.2 who advised to get the mobile repaired at Samsung Service Centre, Balasore where all facilities are available. Complainant handed over the mobile set to O.P.No.3 on 04.11.14 for removal of the defects . Thereafter, the Service Engineer prepared an estimate for repairing the handset amounting to Rs.10,862.43 and the Complainant did not agree for repairing the handset on chargeable basis during warranty period. On the other hand the case of O.Ps 2,3 & 4 is that the handset was damaged due to water logging which is not a manufacturing defect. Since the handset has been damaged by improper use and water logging, the warranty is not applicable and therefore the O.Ps are not legally bound to replace the handset or to refund the purchase price to the Complainant. The Company’s obligation under the warranty shall be limited to repair or proving replacement of parts only. The maximum claim if entertained by the company will be subject to the maximum retail price of the product purchased or the purchased price whichever is lower. As per Clause-7 of the warranty card, any damage to the product or misuse detected by the authorized service centre personnel, the warranty conditions are not applicable and repairs will be done subject availability of parts and on a chargeable basis only.
After giving our thoughtful consideration to the contentions advanced by the Counsel for the parties and the evidence on record there is no dispute with regard to the factum that the mobile handset, in question, was purchased by the complainant from Opposite Party No.1 on 26.06.2014 vide Bill No.508 on payment of Rs.17,000/-. The warranty of this mobile handset was for a period of one year, from the date of its purchase. No doubt, there must be “User Guide” of the mobile handset containing certain instructions as to how the same to be used which has not been filed by the O.Ps in this case. According to the version set up by the O.Ps, the handset was damaged due to water logging which is not a manufacturing defect. Further, the handset has been damaged by improper use. As such, the warranty is not applicable for which they are not legally bound to replace or refund the purchase price to the Complainant. As is revealed from record, the Service Engineer of O.P.No.3 on 04.11.14 prepared an estimate for repairing the handset at a cost of Rs.10,862.43 but the Complainant did not agree for repairing the handset on chargeable basis during warranty period. It is thus clear that the defects found in the mobile handset within 3-4 months of its purchase that too within the warranty period of one year. It has become a common practice that in order to avoid liability, mobile manufacturers are taking the plea of improper use and water logging invoking the warranty conditions. Here the cause of water logging has neither been proved nor stated in the job card by the O.Ps. The O.Ps have not filed in this case the IP(Ingress Protection) rating of such a costly mobile handset in question. IP rating means the device has undergone certified tests to measure its resistance levels to both dust and water. The higher the numbers of IP rating, the higher the respective protection. This means that the device is dust protected and is protected against the effects of immersion and low pressure water stream. So one can use the device in extreme weather conditions for example when it is snowing or raining or when humidity levels are high. One can also use the device in dusty or sandy environments and when fingers are wet. It is not the case of O.Ps that IP rating is not available in the mobile handset. Had the O.Ps maintained IP rating properly, water logging would not have occasioned within 3-4 months of purchase of a costly mobile handset. As such, we are constrained to hold that the mobile handset in question has got some inherent manufacturing defect for which defects arose within 3-4 months of its purchase and not due to improper use. In the worst case, without blaming the Complainant had the O.Ps repaired the mobile handset of the Complainant as a gesture of goodwill taking into consideration the short period of use-vis-à-vis cost of the mobile handset, the present situation in filing the complaint would not have arisen? Thus, the aforesaid acts of the Opposite Parties amounted to deficiency in rendering service as also indulgence into unfair trade practice. Accordingly, it is ordered:
O R D E R
In the result, the complaint is allowed on contest against O.Ps 2,3 & 4 on contest and exparte against O.P.No.1. The O.Ps are directed to replace the defective mobile handset in question to the Complainant by a new one or to refund the cost of the mobile hands within a period of 30 days of receipt of this order, failing which interest @ 9% per annum shall be paid by the O.Ps till its realization. Further, the O.Ps are directed to pay litigation cost of Rs.1,000/- to the Complainant within the aforesaid period of 30 days.
