Andhra Pradesh

Nellore

CC/88/2016

Gunji Dayakar , S/o. Venkateswarulu - Complainant(s)

Versus

1. The Manager, M/s. Lot Mobiles Pvt.Ltd - Opp.Party(s)

C.P.Suresh, Ch.Hymavathi

09 Oct 2017

ORDER

 

                                                                      Date of Filing     :21-09-2016

                                                                  Date of Disposal:09-10-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the  9^th  day of   OCTOBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

                         Sri M. Subbarayudu Naidu, B.Com., B.L., LL.M., Member

 

C.C.No.88/2016

Gunji  Dayakar, B.A.,B.L.,

Practising Advocate at Nellore,

S/o.Venkateswarlu,

Hindu, Aged 47 years,

R/o.Sanjeeva Nagar Village,

Kammapalem Post,

Kodavalur Mandalam,

SPSR Nellore District.                                                                ..… Complainant       

                                                             Vs.

 

1.	The Manager, Lot Mobiles Private Limited, H.No.188, Ward No.15, Beside Narthaki Theater, R.R.Street, Nellore City, SPSR Nellore District.
2.	Samsung India Electronics Private Limited, Represented by it’s Manager / Authorised Person, Al-25, Ground Floor, Frant  Tower, Mohan Co-operative Industrial Estate, New Delhi-110044.
3.	Samsung Authorised Service Centre, Represented by it’s Manager, Tirumala Electronics, 13/305, 1st floor, Sri Sai Complex, Nellore-524 001.                                   ..…Opposite parties

                                             

          This complaint coming on 18-09-2017 before us for hearing in the presence of Sri.C.P. Suresh and Smt.Ch. Hymavathi, advocates for the complainant and opposite party No.1 appeared in person and Sri Md. Rahimkhan and Sri Bhaskar Poluri, advocates for the opposite parties 2 and 3 and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

            The complaint filed this complainant under Section-12 of Consumer Protection Act, 1986  to direct the opposite parties to replace the  repaired and old mobile with new mobile for awarding compensation of Rs.50,000/-  as the complainant underwent  lot of  mental tension and mental worry on account of opposite parties illegal activities and deficiency in service by giving the old and damaged mobile instead of new mobile to the complainant, Rs.5,000/- towards costs.

 

2.   The brief averments of the complaint  are as follows that:- The complainant  purchased J 500F Samsung Mobile Galaxy J5 Gold bearing No.356823074245007 for an amount of Rs.11,390/- on 15-03-2016. The 1^st opposite party collected insurance premium of Rs.300/- and  collected amount is Rs.11,690/- for the mobile. Immediately after the purchase of the above said cell phone complainant observed some defects n the mobile and after two months the mobile stops working and  complainant approached the 1^st opposite party many times and explained about the defects in the mobile.  The complainant submits that he proved that the 1^st opposite party has been given a repaired mobile on 15-03-2016 by believing   that the  mobile is a new mobile.  The mobile which has been purchased from the 1^st opposite party  stopped working from the next day onwards.  But the 1^st opposite party  by saying one thing or  the other   postponing  the issue.  The defects arose within warranty period of 12 months. 

Complainant informed about the defects and non-working  of mobile with the 1^st opposite party  and requested him to inform the same to the insurance company immediately.  This incident  happens within 80 days from the date of purchase. 

The 1^st opposite party   sent the mobile of the complainant to the  3^rd opposite party  and the  3^rd opposite party has been given an estimation amount of Rs.10,970/- on 02-08-2016 stating that the product is  inspected before  the customer on 16-03-2016  that  hand set was water damaged at physical appearance which is not believable because there is no test done by the 3^rd opposite party.  It s unbelievable that  the  set is damaged on the next day of purchase. That means the hand set is a second hand one but not first hand which has been purchased by the complainant.

The complainant submits that it is  mandatory duty on the part of the 1^st opposite party  to give a new  mobile to the complainant.  Complainant sent a legal notice to the 1^st opposite party on 16-08-2016 which was returned by the 1^st opposite party and  hence the complainant submits to allow the complaint with costs.

 

3.     The opposite party No.1 appeared in person and filed written version with the following  averments that:- the opposite party No.1 submits that  opposite party No.1 given a repaired mobile  phone on 15-03-2016 by believing  that the mobile is a  new mobile is a baseless and frivolous statement made by the complainant and the complainant put to strict proof of the facts.   In fact  the opposite party No.1 is largest retailer involved in the business of selling many  brands of mobile phones.  The opposite party No.1 never sold any  repaired  or second hand mobile phone from its retail outlets.  By the time of purchase, the complainant  was offered a brand new mobile phone with sealed box along with all accessories like charger etc., along with purchase  bill like  ever customer.  The complainant was  very much satisfied the service provided by the opposite party No.1 at the time of purchase  and later what happened to the mobile phone nobody knows except the complainant and  throwing  on opposite party No.1 without   having any reasons. 

The opposite party  No.1 submits  that the  documents filed by the   complainant clearly indicates that the complainant had  approached the opposite party No.3 and  consulted  with him.

The opposite party No.1 submits that the opposite party No.1 are only dealers of various brands of mobile phones including the said  mobile phone which is manufactured by opposite party No.2.  The  manufacturer  provides warranty for a period of 12 months from the date of purchase and the opposite party No.3 is an authorized service center who carryout repairs to that said phone within the  warranty period and if  such defects are beyond repair the manufacturer i.e., opposite party No.2 has to replace that with  new one.  But the opposite par No.1 is only the dealer and are no way concerned with manufacturing / repairing  of the said phone.  Further it is needless to say that the opposite party No.1 are not even aware  the defects arouse  in the said phone, i.e., whether the said defect is  a manufacturing defect or defect due to  mishandling.  In the absence  of any  pleadings to the said effect and much less allegations  against opposite party No.1, the complaint is liable to be dismissed in limini as against opposite parties.

The opposite party No.1  submits that  on a bare perusal of the complaint  and the documents filed in support of the same, it is clearly evident that the complainant failed to plead  the  specific  problems to that said phone except some vague statements. This itself shows that the complainants have setup a false case and the same is liable to be dismissed.  In order to remove all doubts and to know whether the said phone has manufacturing defect or it is  subjected to wrong handling or not, expert   opinion is required.  Hence, the opposite party No.1 prays  to send  the mobile phone of the complainant for  expert opinion as required   under Section-13(C) of the Consumer Protection Act.

The opposite party No.1 submits that  the complainant by the time of purchase took insurance policy for the protection of that said phone through cash bill dated 15-03-2016   alongwith all documents of insurance policy.  If it is truly any manufacturing defect, the insurance company  will  definitely come into picture.  The complainant is questioned that whether he  approached  the  insurance company and what was the answer from  them and what are  the reasons for insurance company was not being made as part to this case.  It is submitted that all these facts should be shown by the complainant and  submits for dismissal of the complaint with costs.

4.   The opposite party No.2 and 3 filed written version with the following averments that:-  the Samsung is one  of the leading manufacturers of  electronic products like mobiles,  televisions etc., including computer peripherals and has got a very strong Research  and  Development base.  The opposite parties 2 and 3 submitted that the products of Samsung are of the highest  quality   and it will never sell any product which is defective including manufacturing defects and poor workmanship.

The opposite parties 2 and 3 submitted that the complainant has to establish the purchase of the Samsung Mobile Galaxy J-5 Gold, for an amount of Rs.11,390/- on 15-03-2016.  Though the  complainant alleged  that the 1^st opposite party  collected the insurance premium  of Rs.300/-, the insurer is not made the party to the C.C.

The opposite parties 2 and 3 submitted that Samsung will not sell any product  which are defective in nature.  When the complainant approached the authorized service centre on 16-03-2016, it  was inspected in the presence of the   complainant and found the hand set is water damaged  and hence is not  under warranty as per the  terms and conditions  of the warranty.  The relevant warranty conditions are extracted which reads as follows:

“Clause 7:  In case of any damage  of the product / misuse detected by the  Authorized Service Center Personnel, the warranty conditions are not applicable and repairs   will be done subject to availability of parts and on a chargeable basis only”.

The water logging is a condition where in the mobile might have   fell in the  water or water might have fell on the mobile and therefore when the said act has happened due to the negligence of the complainant, the complainant cannot contend  that the 1^st opposite party sold a repaired mobile.

The opposite parties 2 and 3 submitted that  the water logging is not  a defect but it is due to the negligence  of the complainant and therefore it cannot be alleged that the defect arose within the warranty period of 12 months.  Having been informed immediately on 16-03-2016 itself,   the complainant cannot make out a case of deficiency of service and  the set being water logged make out a cause of manufacturing defect. If at all the complainant has to claim,  it is against the  insurance  company and the insurance company is not made a party  to the instant C.C.

The opposite parties 2 and 3 submitted that the mobile is not damaged for any other reasons but for mobile being dropped in water and therefore the statement “it is  unbelievable that the set is  damaged on the next day of purchase” is incorrect.  The water damage can happen even immediately after purchase, need not be the next day because  of the negligence  of the complainant.  Merely because the mobile is water logged aspersions cannot be cast that  the mobile is 2^nd hand one.

The damage being due to the negligence  of the complainant,  the complainant is not liable  for any compensation as prayed for in the complaint and hence submits for dismissal of the complaint with costs.

  5.     On behalf of the complainant, P.W.1 was examined and

 Exs.A1 to A5 were marked.

 6.      On behalf  of opposite party No.1,  no evidence was adduced  and no documents were marked.

7.    On behalf of opposite parties 2 and 3, R.W.1 was examined and no documents were marked.

          8.       Written arguments filed on behalf of complainant and opposite party No.1.

          9.   Perused the written arguments filed  on behalf of complainant and opposite party No.1.

          10.     Arguments on behalf of both parties heard.

          11.     Now the points for consideration are:

1. Whether the complaint filed by the complainant under Section-12 of Consumer Protection Act for alleged deficiency of service by the opposite parties 1 to 3 is maintainable?
2. To what relief, the complainant is entitled?

       12.  POINT No.1: The learned counsel for the complainant submits by relying upon  the evidence  of  P.W.1 and Exs.A1 to A5  that the complainant purchased  cell phone in the   shop of opposite party No.1 under Ex.A1 on                  15-03-2016  and the said cell phone was damaged during the warranty period and inspite of issuing of Ex.A2 legal notice as the opposite parties 1 to 3 failed to pay the  amount  or  as they failed to replace  the new  cell phone,  the complainant filed  this complaint against the opposite parties 1 to 3, as the acts of the opposite parties 1 to 3  is amounts to deficiency  of service  and  submits to allow the complaint by awarding  damages and costs. 

           On the other hand, the opposite party No.1 submits by filing written  arguments that the  cell phone  was water damaged  and hence warranty period is not applicable to the cell phone purchased by the complainant and as there was water damaged,  the opposite parties 1 to 3 are not  liable to replace the new cell phone and hence as there is no deficiency of service, he submits that the complaint filed by the complainant against the opposite parties 1 to 3 is not maintainable and  submits for the dismissal of the complaint against the opposite parties 1 to 3 with costs.

        In view of the arguments submitted by the learned counsel for  the complainant  and by considering written arguments and written version, though the opposite parties 1 to 3 submits that the cell phone was damaged due to water damage but there is no  convincing  evidence was placed by the opposite parties to prove   that the  cell phone was damaged due to water damage.  The opposite party No.1 filed written version by raising his contention but he did not adduce any  evidence  and   the opposite parties 2 and 3 filed  written version and  affidavit, they did not file any documents in support of their contention to prove that the cell phone was damaged  due to water damage.   In these circumstances, the contention raised  by the opposite parties 1 to 3 that the cell phone  was  damaged due to  water damage in cannot be accepted.

In  Rangannagiri  Yadavareddy Vs. Dr. Vijaya Kumari reported in 2001 (2) CPJ 391.

The Hon’ble Forum held that  “Averments in  complaint by themselves cannot be accepted without evidence.”  

By relying upon the above decision, we are of the opinion that the  averments in   written versions  by themselves cannot be accepted without any documentary evidence . But in this case, the  opposite party No.1 did not adduce any evidence and no documentary evidence or any other convincing  evidence was placed before the Forum to accept the contention of opposite party No.1.

 

Further, the opposite parties 1 to 3 did not produced  any documentary evidence in support of their contention to prove that the cell phone was damaged due to water damage in and there is no negligence on the part of the opposite parties            1 to 3.  The burden is heavily lies on opposite parties 1 to 3.  Hence by relying upon the above decision and the facts of the case and as  Ex.A1 warranty is  in force and  it is the bounden duty of the opposite party No.1 to attend the grievance of the  complainant  as the  opposite party No.1 sold the cell phone to the complainant.  In view of the  above said facts, we are of the opinion that  there is  deficiency of service on the part of the complainant by the opposite party No.1.   

 

By relying upon the above decision and discussion made above, we answered this point in favour of complainant and  against the opposite party No.1 only.

 

13.POINT No.2:  In view of our answering  on point No.1 in favour of complainant and against the opposite party No.1 only, we are of the opinion that the complaint filed by the complainant against  the opposite party No.1  has to be allowed partly.

In the result, the complaint is allowed partly against the opposite party No.1 only and the opposite party No.1 is directed to pay the  costs of the cell phone of Rs.11,690/-  (Rupees eleven thousand six hundred and ninty only) with interest 12 percent p.a. on Rs.11,690/- from the date of Ex.A2 notice dated 15-08-2016 till realization and further the opposite party No.1 is directed  to pay damages of Rs.10,000/- (Rupees ten thousand only) for causing mental agony to  complainant and the opposite party No.1 is also directed to pay the costs of                                  Rs.5,000/- (Rupees five thousand only) to the complainant.

 The opposite party No.1 is directed to comply the order within 30 days  on communication of the order.

The case against opposite parties 2 and 3 is dismissed without costs.

 

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  9^th day of  OCTOBER, 2017.

 

          Sd/-                                          Sd/-                                               Sd/-

      MEMBER                                MEMBER                                PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

06-06-2017

Sri Gunji Dayakar, S/o.Venkateswarlu, Working as an Practicing Advocate at Nellore, Kodavalur Mandalam, SPSR Nellore District (Evidence affidavit filed)

 

Witnesses Examined for the opposite parties

 

R.W.1  -

28-12-2016

Sri Anindya Bose, S/o.A.K.Bose, Deputy General Manager (CS), Resident of Gurgoan. (Evidence affidavit filed)

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

Ex.A1  -	15-03-2016	Cash Bill  for Rs.11,690/-  in favour of complainant issued by the opposite party No.1.
Ex.A2  -	15-08-2016	Legal notice from complainant’s advocate to the opposite party No.1.
Ex.A3  -	-	Returned registered post cover  from opposite party No.1 sent by the complainant’s advocate.
Ex.A4  -	02-08-2016	Photostat copy of  estimation given by the opposite party No.3 for Rs.10,970/-.
Ex.A5  -	04-08-2016	Photostat copy of  estimation given by the opposite party No.3 for Rs.4,392/-.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

-Nil-

 

                                                                                                                 Id/-

                                                                                                      PRESIDENT

Copies to:

1.	Sri C.P.Suresh and Smt.Ch.Hymavathi, Advocates, Yarramma Buildings,    Opposite  to State Bank of India, Barracks, Nellore City-524 001,                        SPSR Nellore District, A.P.
2.	The Manager, Lot Mobiles Private Limited, H.No.188, Ward No.15, Beside Narthaki Theater, R.R.Street, Nellore City, SPSR Nellore District.
3.	Sri Md. Rahimkhan and Sri Bhaskar Poluri, Advocates, Flat No.403,              Kranthi Towers, Barkatpura, Hyderabad-500 027.

 

Date when free copy was issued: