Order dictated by:
Sh.Anoop Sharma, Presiding Member.
- Present complaint has been filed by Sh.Vikas Sharma under the provisions of the Consumer Protection Act alleging therein that he purchased one Mobile Set make Samsung Galaxy J-21 4G from Opposite Party No.1 for a sum of Rs.7500/- vide bill dated 3.8.2016, copy of bill is enclosed herewith. The warranty of the said Mobile Set in question was given by the seller for six months which is duly mentioned on the bill itself. It is submitted that on 9.8.2016, said Mobile Set in question stopped working. The complainant immediately approached Opposite Party No.1 to replace the Mobile Set in question due to the defect in the Mobile Set in question, but however, Opposite Party No.1 sent the complainant with Opposite Party No.2-Authorised Service Centre, saying that if there is any defect in the Mobile Set in question, it is the responsibility of Opposite Party No.2-Authorised Service Centre. The complainant then approached Opposite Party No.2-Authorised Service Centre and requested to remove the defect in the Mobile Set in question, but despite 4 or 5 visits, Opposite Party No.2-Authorised Service Centre did not do the needful. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties be directed to replace the Mobile Set in question with new one of same make and model or to refund the amount of Rs.7500/-.
b) Opposite Parties be also directed to pay Rs.5,000/- towards compensation for causing mental harassment, agony, etc. to the complainant.
Hence, this complaint.
2. Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the complaint is baseless, devoid of any merits whatsoever and without any cause of action against the replying Opposite Parties and they have been indulged in this litigation without any substance. Opposite Party No.1 is a dealer and sells the Mobile Sets in duly packed conditions as received from the manufacturing company and he is not manufacturer and where as Opposite Party No.2 is a service centre only and they are not liable for any warranty or replacement of the mobile set as the warranty is only given by the manufacturing company strictly as per the terms and conditions of the warranty, but the complainant has not impleaded the manufacturer as party in the complaint and thus the complainant is bad for mis joinder of parties and non joinder of the necessary parties and hence it merits dismissal on this ground alone. It is submitted that when the complainant has brought the Mobile Set in question to Opposite Party No.2 the same was in wet condition and some liquid substance had gone inside the same, which is the presumptive proof of mishandling of the Mobile Set in question by the complainant and as such, the Mobile Set in question was not able to be repaired and as such, same was returned to the complainant. Hence, the Opposite Parties can not be held guilty for the fault of the complainant. The complainant is trying cleverly to hide the irreversible default on his part and same is due to negligence and use of same without reasonable care and the replying Opposite Parties can not be held liable for the same. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C3 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1 and 2 tendered into evidence the affidavit of Sh.Tarsem Kumar Ex.OP1,2/1 and closed the evidence on behalf of the Opposite Parties.
5. We have heard the complainant and ld.counsel for Opposite Parties No.1 and 2 and have carefully gone through the evidence on record.
6. The complainant Vikas Sharma has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and argued that he had purchased one Mobile Set make Samsung Galaxy J-21 4G from Opposite Party No.1 for a sum of Rs.7500/- vide bill dated 3.8.2016, copy of bill accounts for Ex.C2 on the record. It is argued that the warranty of the said Mobile Set in question was given by the seller for six months which is duly mentioned on the bill itself. It is submitted that on 9.8.2016, said Mobile Set in question stopped working. The complainant immediately approached Opposite Party No.1 to replace the Mobile Set in question due to the defect in the Mobile Set in question, but however, Opposite Party No.1 sent the complainant with Opposite Party No.2-Authorised Service Centre, saying that if there is any defect in the Mobile Set in question, it is the responsibility of Opposite Party No.2-Authorised Service Centre. The complainant then approached Opposite Party No.2-Authorised Service Centre and requested to remove the defect in the Mobile Set in question, but despite 4 or 5 visits, Opposite Party No.2-Authorised Service Centre did not do the needful.
7. On the other hand, ld.counsel for Opposite Parties No.1 and 2 has specifically repelled the aforesaid contentions of the complainant on the ground that first of all, Opposite Party No.1 is a dealer and sells the Mobile Sets in duly packed conditions as received from the manufacturing company and he is not manufacturer and where as Opposite Party No.2 is a service centre only and they are not liable for any warranty or replacement of the mobile set as the warranty is only given by the manufacturing company strictly as per the terms and conditions of the warranty, but the complainant has not impleaded the manufacturer as party in the complaint and thus the complainant is bad for mis joinder of parties and non joinder of the necessary parties and hence it merits dismissal on this ground alone. It is submitted that when the complainant has brought the Mobile Set in question to Opposite Party No.2 the same was in wet condition and some liquid substance had gone inside the same, which is the presumptive proof of mishandling of the Mobile Set in question by the complainant and as such, the Mobile Set in question was not able to be repaired and as such, same was returned to the complainant. Hence, the Opposite Parties can not be held guilty for the fault of the complainant.
8. Admittedly, the complainant had purchased one Mobile Set make Samsung Galaxy J-21 4G from Opposite Party No.1 for a sum of Rs.7500/- vide bill dated 3.8.2016, copy of bill accounts for Ex.C2 on the record. It was not the denial of the Opposite Parties No.1 and 2 that the Mobile Set in question having six moths warranty from the date of its purchase i.e. uptil 3.2.2017. But the only contention of the ld.counsel for the Opposite Parties No.1 and 2 is that Opposite Party No.1 is a dealer and sells the Mobile Sets in duly packed conditions as received from the manufacturing company and he is not manufacturer and where as Opposite Party No.2 is a service centre only and they are not liable for any warranty or replacement of the mobile set as the warranty is only given by the manufacturing company strictly as per the terms and conditions of the warranty, but the complainant has not impleaded the manufacturer as party in the complaint and thus the complainant is bad for mis joinder of parties and non joinder of the necessary parties, but however, the Opposite Parties never denied the defect in the Mobile Set in question within warranty period, rather while receiving the Mobile Set in question from the complainant on 17.8.2016 by Opposite Party No.2-Authorised Service Centre, they issued acknowledgement of service request Ex.C3, but they failed to repair the Mobile Set in question of the complainant. On the other hand, though the complainant in his complaint has submitted that there is manufacturing defect in the Mobile Set in question, so the Opposite Parties may be directed to replace the same with new one or to refund its price. But the complainant has failed to produce any documentary evidence i.e. authenticated report of expert and qualified person of approved laboratory as required under the law regarding any manufacturing defect, if any, in the product in question. So, in the absence of any expert evidence, the claim of the complainant regarding its replacement or to refund its price, can not be allowed. Moreover, the replacement or refund is only permissible where the defect in the produce is of such a nature that it can not be cured or repaired. So, it can not be said that the Mobile Set in question have any manufacturing defect in the absence of any expert report. So, in such a situation, we direct the complainant to deposit the Mobile Set in question with Opposite Party No.2-authorised service centre of the company, within 7 days from the date of receipt of copy of this order and thereafter, Opposite Party No.2 –service centre shall remove the defects, if any, in the Mobile Set in question to the satisfaction of the complainant, without charging any amount, within a further period of 30 days. Both the Opposite Parties are jointly and severally and co-extensively directed to pay Rs.1500/- to the complainant on account of compensation. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 31.01.2017.
