DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __129_ _ OF ___2016
DATE OF FILING :_25.11.2016 DATE OF PASSING JUDGEMENT :20.11.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker
COMPLAINANT : Sk. Kadir, son of Abdul Khaleque, at Roynagar (Rail Gate), Diamond Harbour , South 24-Parganas, Pin-743331.
O.P/O.Ps : 1. Debjani Communication, Diamond Harbour Station More (Opp. Railway Ticket Counter), Diamond Harbour, South 24-Parganas.
2. Parthana Enterprise at Notun Pol, College Road, South 24-Parganas, Pin-743331.
3. Samsung Electronics Pvt. Ltd. Pressman House, 2nd Floor, 10A, Lee Road, P.S Bhawanipure, Kolkata – 20.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Flat refusal of the O.P company, to replace the mobile set of the complainant by a brand new one has galvanized the complainant to file the instant case under section 12 , C.P Act, 1986 against the O.Ps, alleging deficiency in service.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant purchased a mobile set , Model no.SM/A700FZWGINU of Samsung Company i.e O.P-3 from O.P-1 , the authorized dealer of O.P-3 on 1.4.2015 for a consideration price of Rs.31,500/-. The Mobile Set carried with it a warranty coverage for 12 months for free service and replacement/repair of parts. Since 7-8 days after purchase of the said set, the mobile set started developing some problems-it got heated quickly while in operation and thereafter the touch screen of it also stopped functioning. The set was brought to the O.P-1 who kept the same for a few days in order to get the same repaired by O.P-2 , the authorized service center of the company. O.P-1 asked the complainant to wait for a month. After a month, when the complainant went to O.P-1 to take back his mobile set, he was again asked to wait for some more days. Finally, on 28.7.2015, the mobile set was returned to the complainant by O.P-1 in same condition with a “QC check sheet “reporting that the problem is not resolved. Now, the complainant prays for replacement of the mobile set by a new one or alternatively, for refund of the consideration price and payment of compensation. Hence, arises the instant case.
None of the O.P nos. 1 and 2 has turned up to contest the case inspite of service of summons upon them and ,therefore, the case is heard exparte against them.
It is O.P-3 i.e Samsung Company who has filed written version of its statement to contest herein ,admitting the sale of the hand set to the complainant. It is submitted on behalf of O.P-3 that there is no manufacturing defect in the set and, therefore, the set is not replaceable by a new one. It is further submitted on behalf of the O.P-3 that the authorized service center of the company i.e O.P-2 found the Auto Touch Pad of the mobile set not functioning and it was due to mishandling of the set and lack of proper protection of the same. The touch paid can be damaged substantially, if kept in the pocket with other objects such as keys, coins etc. Such kind of damage as is caused to the touch paid of the mobile set is not covered by the warranty given to the complainant and, therefore, the complainant is required to pay for repair charge. Complainant did not agree to pay for the repair charge and, therefore, the mobile set was returned to the complainant without getting it repaired. Necessary repair to the mobile phone can be done only if the complainant pays the cost of the repair. There is no deficiency in service on the part of the O.Ps and the case should, therefore, be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Have the O.Ps caused any deficiency in service by not giving service as promised to the complainants?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The petition of complaint is treated as evidence of the complainant vide his petition dated 21.6.2017. No evidence whatsoever is led by O.P-3. Questionnaire, replies and BNA filed by the parties are kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is submitted in the written version filed by the O.P-3 that the complainant need to make payment for repair charge, as because the damage caused to the touch screen is not covered by warranty service. It is the version of the said O.P that the damage may be caused to the touch screen of a mobile if the mobile is kept in the pocket with key , coins etc. Every person keeps the mobile in the pocket. It has also been seen that there are scratches on the touch screen of the mobile and despite existence of such scratches, the mobile has been functioning in good manner. In the instant case, a job sheet has been supplied to the complainant by the O.P-1. In that job sheet it is written that the problem of the mobile is not resolved. There is no mention anywhere in that job sheet as to where lies the defect in the mobile set and what kind of defect it is. The technician of the O.P company has not mentioned anything in that job sheet that there are scratches on the touch screen of the mobile and that the said scratch marks have completely destroyed the touch screen of the mobile. In absence of such cogent evidence we are unable to hold that the mobile set has stopped functioning due to any act of the complainant.
Going through the terms and conditions of the warranty it is found that warranty service covers a period of 12 months from the date of purchase of the mobile set. The mobile set is purchased by the complainant on 1.4.2015 and, therefore, the warranty service is likely to extend till 1.4.2016. A perusal of warranty conditions vide warranty card, annexure A to written version, reveals a condition which goes thus, “This warranty covers repair/replacement of parts”. So, it is found that there is provisions for replacement of the parts of mobile set, if it is found defective. But , it is submitted in the written statement filed by the O.P-3 that the complainant did not pay any repair charge and ,therefore, the mobile set was not repaired. Such kind of submission appears to be a puerile one and is not ,therefore, accepted. Fact remains that the mobile set was not repairable and, therefore, O.P-3 has made an attempt to cover the loopholes by giving blame to the complainant.
Now to see whether the defect of the mobile set as pointed out by the complainant is a manufacturing one or anything else. The touch screen of the mobile set is not functioning and having faced with these problems the mobile set was made over to O.P-1 and O.P-2 by the complainant for putting it on the right track. They kept the mobile for long two months as it transpires in the evidence of the complainant. But they failed to make it functional and they were compelled to return it to the complainant in non-functional condition. What does it mean? Does it not mean that the mobile set was not amenable to repair? It means and means only that the mobile set was not repairable inasmuch as the defect was manufacturing one. Had it been repairable ,the technician of O.P-3 namely O.P-2 could have repaired it and could have made it functional. It has been argued on behalf of the O.P-3 that the Forum cannot reach to a conclusion about the existence of manufacturing defect in absence of any expert opinion. But in the instant case, it cannot be said that there is no expert opinion. O.P-2 is the expert of O.P-3, because he is the authorized service centre of O.P-3. So, we should not grope about here and there for an expert opinion; the facts and circumstances of the case establish by the job sheet issued by the O.P-2 that the mobile set is not capable of repair. Regards being had to this aspect we can say emphatically that there is manufacturing defect in the mobile and the circumstances as pointed out above establish this thing to its best.
Now it is proved upon facts and materials of the case that there is manufacturing defect in the mobile set and this defect started to arise since 6 or 7 days immediately after the purchase of the mobile. As there is manufacturing defect in the mobile set, the complainant is entitled to a new one of same kind which will be free from all defects.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against the O.P nos. 1,2 and allowed on contest against O.P-3 with a cost of Rs.10,000/- .
All the O.Ps, who shall remain jointly and severally liable to comply with the decree, are directed to replace the old mobile set of the complainant by a new one of same model which will be free from defect ,within a month of this order , failing which they will have to refund the entire consideration price of Rs.31,500/- with interest @8% p.a from the date of purchase of the mobile set till full realization thereof along with a sum of Rs.20,000/- to be paid as compensation for harassment and mental agony to the complainant within the aforesaid period of one month . If the compensation amount is not paid within the aforesaid period to the complainant by the O.Ps, the compensation amount and the amount of cost will bear interest @8% p.a till full realization thereof.
Further, complainant is directed to return the old mobile set to the O.Ps, if it is replaced by a new one or when the O.Ps will make full payment of consideration amount, compensation amount and cost amount
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
