This is a case of consumer complaint in respect of sale of a new mobile handset by the OP dealer which got malfunctioning and sent to Service provider OP2 by the complainant and against OP3 company claiming replacement of the equipment or refund along with compensation in consumer dispute under the Consumer Protection Act 1986.

The brief facts of the complaint case are that on 21.05.2019 the complainant purchased a mobile handset from OP1 distributor/dealer of OP3 mobile company for Rs.11,500/- with warranty period of one year. Within very next day the touch screen of the smart phone developed some defect and was produced before OP1 on 22.05.2019 when it started refunctioning at the premises of OP1. But due to repetition of the same problem, the complainant approached OP1 .This time it was refused by OP1 with an advice to contact OP2 service provider. So the complainant handed it over to the service provider OP2. The Complainant was then provided with another handset on loan for maintaining uninterrupted services till the equipment gets repaired. It is the case of the complainant that the mobile which was given to OP2 for replacement but the opposite parties wanted to return the same handset and refused to replace the same despite the warranty period not having expired. Being aggrieved, the complainant approached the CA& FBP office but the effort for mediation did not materialise. Hence complainant filed the instant consumer complaint before the District Consumer Disputes Redressal Commission being complaint no. 207 of  2019.  The complainant prayed for a direction on the OP2 for replacement of the handset or refund of the cost of Rs.11,500/-  to the complainant along with compensation of Rs.5,000/-.

The opposite parties nos.2 & 3 namely Customer Care Centre ....... and Samsung India Electronics Pvt. Ltd. have filed written version and adduced evidence. The OP1 did not appear despite service of notice and none was present on the day of argument

In the evidence in chief the complainant stated that there were many time touch screen defects noticed from the very beginning of the purchase of the mobile set alongwith repeated disturbances during use.

Learned counsel for the OPs stated that the complainant has not shown any reason or any basis of assuming that the handset had manufacturing defect though the mobile was sent for repairs during the warranty.

It was argued that just sending the mobile phone for repairs does not mean that the mobile has manufacturing defect. Learned counsel for the contesting OPs further stated that if there is any defect in the mobile set in the warranty period, the company is duty bound to repair the same.  The warranty is limited to repairs of all kinds and change of defective components, if any. However, warranty does not extend to complete replacement of the mobile set.

Heard the learned counsel for the petitioners and the learned counsel for the OP2 and OP3 read with records and exhibits. Given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and learned counsel for OP2 & 3 and have examined the records.

When a person purchases a new mobile set, he expects efficient working of the handset.  Nobody would like to return the mobile set immediately after purchase and get the refund, unless there is a problem.  There must be some problems with the mobile set, which either were not explained to the complainant by the dealer or there were real problems. Thus, if the complainant had filed any complaint with the opposite parties for non-functioning of the mobile set, the opposite parties were duty bound to rectify the defect as the mobile was under warranty. As the phone did not work, it definitely requires repairs.  Even if there is no manufacturing defect, the fact of the matter is that the phone was not working properly which may be due to any major or minor fault. The Mobile is costly and therefore, it must be having features.  It has not been alleged that it did not work properly.  However, the opposite parties have failed to either clarify reasons for these defects or to rectify these defects and therefore, the complainant could not use his mobile phone to her full satisfaction and  full enjoyment of a new phone. 

As the defects were noticed within the warranty period, the opposite parties are liable to restore services to the handset.  In the case of Vinot Sharma Vs. Hindustan Motors Ltd. & anr, decided on 3.4.2002, (NC). 

                                               AND

In the matter in Mahindra & Mahindra Ltd. Vs. B.C. Thakurdesai and Anr., II (1993) CPJ 225 (NC), it is held that:

"If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer, if he is asked to replace the whole machinery without sufficient cause."

Also in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr.,  Appeal (Civil) 8701 of 1997, decided on 02.11.1999 (SC), it has been held that:-

"The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service."

In these circumstances, the ends of justice would meet if the complainant is given reasonable and proper service in the facts and circumstances of the case.

Based on the above discussions, the complaint petition No. 207 of 2019 is partly allowed.

The OPs jointly and severally will return the disputed handset after due repairs to the full satisfaction of the complainant else will refund the cost of the new handset of Rs.11,500/- to the complainant. The Mobile handset taken on loan shall be returned by the complainant to the opposite parties.

The above order will be implemented by the OPs jointly and/or severally within 45 days from this order failing which a simple interest @ 10% shall be payable by the OPs to complainant from the date of purchase of the handset till final disposal of this order.

Let a copy of this order be provided to the parties free of cost as per CPR.

The Final order will be made available in www.confonet.nic.in.

Dictated and corrected by me.

            Member