By: Smt. Mini Mathew, Member
Facts in brief:-
Complaint filed u/s 12 of the Consumer Protection Act 1986.
Complainant purchased one Samsung J2 (6) mobile phone along with its screen guard from the shop of the 1st opposite party on 8/10/16 after paying an amount of Rs.9950/-. Second opposite party is the manufacturer of the mobile phone. At the time of purchase the opposite parties offered one year warranty to the phone. Opposite party No.1 further offered to the complainant that he would rectifiey all the complaints to the mobile phone and with this assurance the complainant purchased the phone from the 1st opposite party. But within one week from the date of purchase complainant noticed that the display of the mobile phone became defective and she had contacted opposite party No1 over phone and informed him of the matter . As per the direction of opposite party No.1 on 18/10/2016 complainant had gone to the shop of opposite party No.1 and entrusted the phone to them. Thereafter complainant had gone to the shop of opposite party No.1 on 20/10/16 and opposite party No.1 informed the complainant that the display has to be changed and opposite party No.1 demanded Rs.4800/- for that by saying that the display of the phone was physically damaged. Complainant demanded opposite party No.1 to get back the phone and at that time opposite party No.1 informed her that they had sent the phone for service to their service centre at Kozhikode. They further informed the complainant that after getting the phone from the service centre of Samsung phones at Kozhikode they are ready to deliver the same to the complainant. Lastly on 30/10/2016 opposite party No.1 returned the phone to the complainant without curing the defects.
Within one week from the date of purchase itself the phone became defective and opposite party No.1 demanded Rs.4800/- for repairing the phone . Even though the phone became defective within the warranty period. Definitely this amounts to deficiency in service and unfair trade practice.
Hence this complaint.
Through the complaint complainant demanded Rs.9950/- towards the value of the mobile phone, Rs.40000/- for the mental agony and hardships she suffered along with Rs.10000/- as cost.
After receiving notice from this Forum opposite parties entered appearance and filed their separate versions.
Through the version opposite party No.1 admits that complainant purchased one Samsung J2-6 mobile phone with Screen Guard on 8/10/16 for an amount of Rs.9950/-.
Opposite party No.1 contented that after one week from the date of purchase of the mobile phone the complainant came to the shop of opposite party No.1 with mobile phone and entrusted the phone to opposite party No.1. After checking the mobile phone opposite party No.1 came to know that the display of the mobile phone was broken by falling down the mobile phone from her. Since the display of the mobile phone was broken it was not functioning . Complainant demanded either to repair phone or replace the mobile phone free of cost by availing service warranty and opposite party No.1 informed the complainant that for any physical damage the customer is not entitled for warranty protection. The case in which a physical damage was caused by the negligence of the purchaser, she is not entitled for warranty protection. The complainant is not satisfied with the advise given by opposite party No.1 and she had taken the phone from opposite party No.1. The physical damage was caused by the complainant herself and for which opposite party No.1 is not responsible.
There is no deficiency in service or unfair trade practice from the side of opposite party No.1 and hence opposite party No.1 prays for the dismissal of the complaint.
Opposite party No.2 filed his detailed version. But it is very funny to note that through the version opposite party No.2 discussed about a case of both Refrigerator and Air conditioner instead of a mobile phone. That reveals the opposite party has not applied his mind in preparing the version in this case. He had just cut and pasted certain points from some where. On going through the version we find the contention of opposite party No.2 is that after the purchase of the phone complainant or dealer had never approached the authorized service centre of Samsung Mobile phones. If the mobile phone had any complaint as alleged in the complaint the same would have been immediately reported before the authorized service centre for any repair. The warranty card issued has clearly stipulated the terms and conditions in case the product suffers any defect. In this particular case the phone had never reached the service centre of opposite party No.2. If the complainant was ready to handed over the mobile phone to the service centre of opposite party No.2 they would have been ready to provide any service during the period of warranty of the product. The service centre was ready to render better service within the scope of warranty and even now opposite party No.2 is ready to provide service on cost but the complainant is not ready for that . Hence opposite party No.2 prays for the dismissal of the complaint.
The main points to be answered are:-
Whether the opposite parties are deficient in their service?
If so relief and cost if any?
The evidence of the complainant consists of her affidavit in lieu of chief examination and the document she produced as marked as Ext. A1, the bill.
Opposite parties filed their seperate counter affidavits and opposite party No.2 filed Ext. B1 document, the copy of the Special Power of Attorney.
Heard both sides in detail and peruse Ext. A1 document.
It is proved through Ext. A1 document that on 8/10/2016 complainant purchased one Samsung J2 6 mobile phone from the shop of the 1st opposite party after paying an amount of Rs.9950. Opposite party No.1 is the authorized dealer of opposite party No.2 who is manufacturer of the phone. Opposite parties offered one year warranty to the phone.
It is the definite case of the complainant that after one week from the date of purchase the display of the phone became defective and she entrusted the phone to opposite party No.1 on 18/10/16. Opposite party No.1 himself admits that after one week from the date of purchase complainant approached them with the defective phone. They collected the phone from the complainant and after verification opposite party noticed the display of the handset was broken. According to opposite party No.1 the display was broken by as the phone fell down from the complainant and it was a physical damage for which the complainant is not entitled for warranty.
Here physical damage is not proved through an expert”. Complainant through her evidence clearly stated that there is not even a single scratch on the phone. If opposite party is so particular that the display of the phone was broken it could have been proved through the examination of the phone by an expert. No such steps were taken by opposite party No.1.
The case of opposite party No.2 is that the phone was not checked by the authorized service centre of Samsung mobiles. Opposite party No.1 collected the phone from the complainant and informed the complainant that they had sent the phone to Kozhikode and they returned the phone to opposite party No.1 demanding Rs.4800/- to change the display . After collecting the phone from the complainant it is the bounden duty of opposite party No.1 to do the needful. Opposite party No.2 is the manufacturer of the phone he himself issued the warranty card. By simply saying that “physical damage” to the phone and they are not responsible is untenable and unreasonable.
Since opposite party No.2 have taken any steps get the phone examined by an expert we cannot accept their contention that the phone fell down from the complainant and hence it was physically damaged. The complainant has approached this Forum get her grievances redressed. She bought a phone worth Rs.9950/- manufactured by opposite party No.2 from opposite party No.1. But within a week of the purchase of the phone it became damaged. The complainant immediately contacted opposite party No.1 and entrusted the phone to him for getting it repaired and opposite party No.1 demanded Rs.4800/- getting it repaired . We do not appreciate this. The opposite parties ought to have repaired the phone and since they have not taken any steps to prove their vague contention we find that the opposite parties are deficient in their service and they have committed unfair trade practice.
Therefore the complaint is to be allowed and we allow the complaint with cost. Both opposite parties are jointly and severally liable to compensate the complaint.
The opposite parties are directed to pay the complainant Rs.9950/- (Nine thousand nine hundred fifty rupees only) being the value of the mobile phone, Rs.15,000/- (Fifteen thousand rupees only) for the mental agony hardships and financial loss suffered by the complainant and to pay Rs.10,000/- (Ten thousand rupees only) as cost. The amount is to be paid to the complainant within 30 days of the receipt of copy of this order and the 1st opposite party is at liberty to take back the mobile phone from the complainant after paying the above said amount.
If the above said amount is not paid to the complainant with in 30 days the opposite parties are liable to pay interest at the rate of 12% per annum from the date of receipt of this order till realization.
Dated this 31st day of January, 2018.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1
Ext.A1 : Bill.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1
Ext. B1 : Copy of the special Power of Attorney.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER MINI MATHEW, MEMBER
