BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.437 of 2014

Date of Instt. 11.12.2014

Date of Decision :05.06.2015

Manjinder Singh aged about 25 years son of Balbir Singh R/o Village Budha Theh, Beas, Tehsil Baba Bakala, District Amritsar.

..........Complainant Versus

1. Amritsar Mobile Centre, Hall Bazar, Amritsar through its Prop./ Partner/Authorized Representative.

2. Shabd Enterprises, Pam Rose World Trade Centre, Opp.Indo Canadian Bus Service, Near Bus Stand, Jalandhar through its Manager/Prop./Partner/Authorized Representative.

3. Samsung India Electronics Pvt Ltd, 2nd, 3rd & 4th Floor, Tower-C, Vipul Tech.Square, Golf Course Road, Sector-43, Gurgaon-122002 through its Managing Director/Authorized Representative.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Complainant in person.

Sh.Vishal Chaudhary Adv., counsel for OPs No.2 & 3.

Opposite party No.1 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased a Samsung mobile handset make Samsung "S" Duos2(7582), IMEI No.35160206 157995 for Rs.10,600/- from opposite party No.1 vide bill No.3958 dated 24.12.2013. Warranty of 12 months was given for above said mobile handset. Within warranty period the above said handset became out of order. After full charging its battery low used to show on 15% charging and after it the battery low down & low down per second and then the handset used to switch off automatically. The complainant brought above defect into the notice of the opposite party No.1 who told the complainant to contact their authorized service centre/ opposite party No.2. As informed by opposite party No.1, the complainant went to opposite party No.2, told the defect and handed over the defective mobile handset to opposite party No.2. After check-up the opposite party No.2 kept the defective handset with them for rectification of said defect vide their work order No.1088 dated 10.10.2014 and told the complainant to collect it after one week. On 18.10.2014 the opposite party No.2 returned the handset to complainant saying that the defect has been rectified. But on next day the same defect arose again. On 20.10.2014 the complainant again approached the opposite party No.2 and requested them to rectify the above mentioned defect or replace the mobile handset. The opposite party No.2 checked the mobile handset and kept the same with them vide their service request dated 20.10.2014. The opposite party No.2 returned the handset on next day saying that its mother board has been changed and the defect has been removed and further told that in future the above said problem will not take place. But after one week the same problem again arose. Its battery low used to show 15% after full charging and then come to low down per second and the mobile handset used to become dead. Again the complainant went to opposite party No.2 and told for the said defect. The opposite party No.2 took the mobile handset from complainant vide service request dated 13.11.2014 and requested the complainant to collect the handset after one week. When after one week the complainant went to take the handset, the opposite party No.2 told the complainant the defect has not been removed, so, come again in next week. The opposite party No.2 also installed their own battery for trial but the problem remained same. After keeping the handset with them for more than 15 days, the opposite party No.2 returned the handset to complainant saying that the defect could not be rectified permanently. Despite repeated requests and several visits made by complainant to opposite parties, the opposite parties neither replaced the handset nor rectified the fault which tentamount to unfair trade practice and amounts to negligence and deficiency in service. On such like averments, the complainant has prayed for directing the opposite parties to replace the mobile handset with new one or to return its price i.e Rs.10,600/- alongwith interest. He has also demanded compensation and litigation expenses.

2. Upon notice, opposite parties No.2 and 3 appeared and filed a written reply, inter-alia, pleading that the obligation of the answering opposite parties under warranty is to set right the mobile handset by repairing or replacing the defective parts only. The performance of the mobile phone depends upon the physical handling of the product, apart from installation and downloading of various mobile applications, games and other software. The problem as alleged in the complaint has occurred due to mishandling of the handset by the complainant and there was no inherent defect in the handset. The installation of non-compatible mobile applications and games created software problem leading to battery problem and heat-up, which was duly rectified by opposite party No.2 as and when complainant submitted his handset. This fact itself shows that product has been badly mishandled and there is no inherent defect in the handset. In the present case complainant brought his handset with opposite party No.2 on 10.10.2014, 20.10.2014 and 13.11.2014 with problems of heating, auto off and battery backup. On every occasion the problem was duly rectified on the same day and handset made OK to the satisfaction of complainant. The problem of auto off was due to corruption of software which was due to using and installation of non-compatible mobile applications and games which was rectified by updating the software. The problem of heating and battery backup was due to continuous using of handset for long duration and simultaneously using many applications and playing of games, still opposite party No.2 to rectify the problem replaced the PBA board with new one and handset was made OK and delivered back to complainant. The liability of the answering opposite parties under the terms and conditions of the warranty is limited to the extent to repair the handset by repairing or replacing the defective parts only subject to warranty terms and conditions. No such assurance to replace the handset is given by the answering opposite parties under the terms of the warranty and the complainant can not claim more than he has agreed. After 13.11.2014 complainant had never visited opposite party No.2 with any kind of problem, thus handset of complainant is perfectly working. The complainant has neither alleged any specific irrepairable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e authenticated report of expert and qualified person of central approved laboratories in support of alleged submission as required under law. In the absence of any expert evidence the claim can not be allowed.

3. Upon notice, opposite party No.1 did not appear and as such it was proceeded against exparte.

4. In support of his complaint, complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C15 and closed evidence.

5. On the other hand, learned counsel for opposite parties No.2 & 3 has tendered affidavit Ex.OPW1/A and evidence of opposite parties No.2 and 3 closed by order.

6. We have carefully gone through the record and also heard complainant in person and learned counsel for the opposite parties No.2 and 3.

7. The complainant purchased the mobile handset in question from opposite party No.1 on 24.12.2013 for Rs.10,600/- vide retail invoice Ex.C1. According to the complainant, during warranty period, the mobile handset became out of order as after full charging of its battery it used to show low show of 15% charging and thereafter the battery used to low down per second and then mobile used to switch off automatically. Further according to the complainant he gave mobile handset to the service centre i.e opposite party No.2 several times but it failed to rectify the defect. In support of his version, the complainant has tendered his affidavits Ex.CA and Ex.CB and further placed on record service job sheet dated 10.10.2014 Ex.C2, service job sheet dated 20.10.2014 Ex.C3 and service job sheet dated 13.11.2014 Ex.C4. In the job sheet Ex.C2, the problem reported by the complainant is mentioned as when battery is on 15% , the same within second auto off. In job sheet Ex.C3 the problem is mentioned as heat-up, 5-6 tym restart within 15 mint, upto 15% battery phone off. Again in service job sheet Ex.C4 the same defect i.e battery low show on 15% charging is mentioned. The complainant has also placed on record photographs Ex.C5 to Ex.C15 to show that after 15% charging the battery goes down and down within seconds. The above said defect was reported by the complainant to the opposite parties No.2 and 3 during warranty period but they failed to rectify the same. It constitute deficiency in service on their part. In affidavit Ex.OPW1/A Sh.Shriniwas Joshi, Senior Manager of Samsung India has stated that opposite party No.2 installed their own battery for trial and handset was OK with change of battery and opposite party No.2 advised the complainant to purchase the new battery. So it means that according to opposite parties No.2 and 3 the defect was in the battery and not in the handset but on the contrary in their written reply opposite parties No.2 and 3 have stated that the problem of auto off was due to corruption of software which was due to using and installation of non-compatible mobile applications and games which was rectified by updating the software. So they are taking inconsistent stand regarding the defect in the mobile handset of the complainant. Further in their written reply, the opposite parties No.2 and 3 have stated that opposite party No.2 to rectify the problem replace the PBA board with new one and handset was made OK. In case there was problem in the battery of the handset then there was no need of replacement of PBA board with new one. So the version of the opposite parties No.2 and 3 can not be accepted.

8. In view of above discussion, the present complaint is accepted and opposite parties No.2 and 3 are directed to rectify the defect in the mobile handset of the complainant free of cost and in case the same can not be rectified then to replace the mobile handset with new one of the same make and mode or in the alternative to refund its price to the complainant. The complainant is also awarded Rs.2000/- in lump sum on account of compensation and litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

05.06.2015 Member Member President