Punjab

Nawanshahr

CC/1/2016

Sunil Kumar - Complainant(s)

Versus

AS Mobile - Opp.Party(s)

Sukwinder Kaur

21 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SHAHEED BHAGAT SINGH NAGAR

Consumer Complaint No.         :     1 of 05.01.2015

Date of Decision:                    :    21.07.2016

Sunil Kumar S/o Ram Chand R/o Guru Teg Bahadur Nagar, Near Gurdwara Manji Sahib, Nawanshahr, District SBS Nagar.

                                                                             …Complainant

Versus

1. A.S. Mobile, Nokia Care’s Building, Opposite Swarankar Bhawan, Rahon Road, Nawanshahr through its Proprietor/Partner/Manager.
2. Samsung Service Center, Computer Cares, O/o SAMSUNG India Electronics Pvt. Ltd. Moh. Heera Jattan, Nawanshahr through its Owner/Manager/Partner.
3. SAMSUNG India Electronics Private Limited, (H.O.), 2^nd, 3^rd & 4^th Floor, Tower C, Vipul Tech Square, Old Golf Road, Sector – 43, Gurgaon, through its Managing Director.

          …Opposite Parties

                             Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SMT.NEENA SANDHU, PRESIDENT

S.KANWALJEET SINGH, MEMBER

 

ARGUED BY:

For complainant                      :         Ms.Charanjit Lochan, Advocate

For OP No.1                           :         Ex parte.

For OP No.2&3                       :         Sh.B.P.S. Panesar, Advocate

 

ORDER

S.KANWALJEET SINGH, MEMBER

 

1.    Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that he purchased a Samsung mobile of Model Galaxy S Duos – 3 vide bill dated 02.02.2015 for Rs.7,500/- from Op No.1 for personal use.  At that time Op No.1 assured that mobile belongs to reputed company and same will work properly without creating any trouble.  Assurance was given to replace the mobile in case of defect or trouble.  Since its purchase, the mobile starting creating trouble due to problem of hanging, auto switched off, low battery back up, touch screen problem & its screen used to turn white and it reflects nothing and over heat problem etc. Moreover, the body colour of aforesaid mobile also faded.  He also stated that after talking for about 05 to 10 minutes, it used to heat up. In the month of March 2015, the complainant visited with the Op No: 2 & told to officials of Op no: 2 about problem of mobile and the officials of OPs after inspecting and checking the mobile told that his mobile contains internal manufacture defect and they will try to update the mobile and the officials of Op No.2, after little updation & repair, handed over the said mobile and told that it will now work properly in future and will not create any trouble in future. That after lapse of sometime, the said mobile again started to create aforesaid problems, the complainant, in the month of August 2015, visited with the OP No: 1 and 2 and told its entire problem and requested to change the mobile set or to keep it in working position. The said Op No.2, who after little updation & repair hand over the said mobile by asking that it is running “OK” and the officials of Ops assured & promise that it will not create any kind of trouble in future.  After sometime the said mobile, in the end of August 2015, again stop to work properly and again started create problem of hanging, auto switched off, low battery backup, touch screen problem & its screen used to turn white and it reflects nothing and over heat problem etc and many time, it started to stop charging etc and the complainant again approached to OP No. 1 & 2 for removal of the defects of the same and requested to keep his mobile in its working position. After  little updation & repair, the Officials of Op no: 2 handed over the said mobile by asking that it is working “OK” and the officials of Ops assured & promise that it will not create any kind of trouble in future. The complainant also made complaint about the colour fading of the said mobile, but the officials of Ops told him that if he wants to change the body of the same, then, it is chargeable and refused to change the body of his mobile. That few days ago- in the first week of month of November 2015, the aforesaid mobile again started giving problem and he approached the Ops and requested to solve his problem and if they are unable to solve the problem, then, they should replace the mobile as the aforesaid mobile is still under warranty.  But the Ops refused to admit his claim and started to postpone the matter under one pretext to other.  The said mobile set contains manufacturing defect, the Ops have sold it to the complainant unlawfully & committed deficiency in service. The complainant purchased mobile set for his personal use, but the said mobile set never worked properly from very beginning & it has been repaired many times by the Ops alongwith its updation, but it never worked properly and the Ops have also miserably failed to remove the internal /manufacturing defect of the said mobile set. It is very much cleared that the said mobile set is having manufacturing defect.  The said mobile set is in warranty period and the defective piece consisting of manufacturing defect, has been delivered to complainant by the Ops unlawfully. The said fact is well within knowledge of the Ops. The Ops are duty bound to repair the said mobile to keep it in working position or to replace the same. The Ops are very negligent in the providing their services to him. Due to aforesaid reason, his mobile remained off & he remained cut off from his friends and relatives many days. So the complainant has never enjoyed his mobile set. Due to this reason, the complainant has been suffered with great mental agony & tension.  He contacted and requested verbally many times to the Ops to remove the defect of the aforesaid mobile set and to keep it in proper working position or to replace it. Before filing of present complaint, he visited the Ops and made a request to admit his legal and genuine claim, but the Ops flatly refused to admit the legal and genuine claim of the complainant.  It is therefore prayed complaint be allowed and the OPs be directed to replace the said mobile set with new one or refund the price the mobile in question. They be also directed to pay Rs.50,000/- compensation for mental agony and tension and monetary loss suffered by him alongwith litigation expenses of Rs.15,000/-.     

2.       Upon notice, Op No.1 has filed written version stating therein that it is admitted that complainant had purchased the mobile set from answering vide bill dated 02.02.2015; the proper warranty has been given to complainant; the Op No.2&3 are responsible for the feature and repair of the set.  The other averments of the complaint are empathically denied and prayed for dismissal of the complaint. 

3.       Op No.2&3 have filed joint written version stating there in that complainant has purchased the handset on 02.02.2015 and same was working till 24.08.2015, when complainant has approached OP No.2 with problem of “hanging, charging & Touch Problem” in his handset.  It shows that the handset worked perfectly for 7 months and no problem was reported in the handset.  On 24.08.2015, handset was received by Op No.2 and problem was duly rectified to the satisfaction of complainant without any charges and thereafter complainant has never approached OP No.2 with any kind of problem in his handset. This shows that handset of complainant is perfectly working and there is no inherent defect in the handset as alleged by complainant.  As complainant is concealing true facts from this Hon’ble Forum he is not entitled for any relief ; complaint is gross abuse of the process of law; no cause of action has arisen in favour of complainant against answering OP; there is no deficiency in service or breach of contract on the part of answering OP; The answering OP or its service centre has never denied after sales services and they are till ready to provide service to the complainant, if required, subject to warranty terms and conditions; neither there is inherent defect in the mobile nor there is any deficiency in service on the part of OPs; in the present case the handset seems to have been mishandled while being uses by the complainant or his family members; no such assurance to replace the handset is given by the answering respondent under the terms of warranty and the complainant cannot claim more than he has agreed; as and when complainant has approached to OP No.2 on 24.08.2015 with problem in the mobile the same has duly been rectified to the satisfaction of complainant without any charges and within reasonable time; if the complainant does not agree with the submission of answering OP; then Hon’ble Forum to direct the complainant to submit his handset with the authorized service center or before the Hon’ble Forum for inspection and expert opinion regarding the exact condition of the handset as required under the law; the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost; the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence; in absence of any expert evidence the claim could not be allowed; the complainant has alleged that the said mobile is suffering from defects, therefore, it is the legal duty, under the discharge of burden, upon the complainant to establish the same by technical expert report but no such report has been adduced by the complainant; complainant has filed the present complaint with malafide intention to take benefit of his own wrongs; complainant has not sought the permission of this Forum under Section 11(2)(b) of the Consumer Protection Act 1986 before instituting complaint against answering OP; the answering Op has no Branch office in the territorial jurisdiction of this Hon’ble Forum.  On merits, each and every averment of the complaint are denied and prayed for dismissal of the complaint.    

4.       On being called to do so, the complainant has tendered in copy of bill Ex.C-1, copy of job sheet Ex.C-2, affidavit of complainant as Ex.CW1/A and close the evidence. Learned counsel for OPs No.2&3 has tendered affidavit of Anindya Bose Ex.OP2/A and closed the evidence on behalf of OP No.2&3.

          OP No.1 has failed to appear before this Forum from 08.04.2016 till 11.05.2016, hence proceeded against ex parte vide order dated 11.05.2016.  

5.       We have heard the learned counsel for complainant and OP No.2&3 and have also gone through the record carefully.

6.       At the outset the learned counsel for the OP No. 2&3 has raised the objection that this Forum has no territorial jurisdiction to adjudicate upon this case, because the OP No.3 has not having there branch at Nawanshahr.  To this effect the counsel of complainant argued that the complainant had purchase of the said mobile set from OP No.1 at Nawanshahr and he had made the payment of the said mobile at Nawanshahr only.  Moreover, OP No.3 is having its authorized service center at Nawanshahr, therefore this Forum has territorial jurisdiction to adjudicate upon the dispute involved in the present complaint.

Since, the complainant has purchased the mobile in question at Nawanshahr and Op No.3 is having its authorized service center at Nawanshahr. Therefore, this Forum has territorial jurisdiction to adjudicate the matter involved in the present case.  

7.       Copy of the bill of purchase of Samsung mobile of model Glaxy S Duos – 3 with IMEI No.355370066209204, 355371066209202 from Op No.1 has been produced on the record, which fully establishes claim of complainant qua such purchase, being made by him on 02.02.2015.    Complainant approached OP No.2 through Op No.1 3-4 times as revealed from reply dated 01.04.2016 filed by OP No.1 in response to complainant’s application dated 18.03.2016 for production of record regarding submitting his mobile in question with service center of OPs. In response to the said application OP No.2&3 has filed reply that complainant has submitted his mobile only on 24.08.2015.  It is crystal clear that OPs No.2&3 have miserably failed to produce the record of its service center. 

          Learned counsel for the Op No.2&3 has argued that they are still ready to rectify/repair the mobile set in question, if it is in within warranty.  It is also argued that the mobile set is out of warranty and this complaint has been filed after expiry of warranty.  A man can lie, but document can’t.  It is revealed from Ex.C-1 bill of the mobile dated 02.02.2015 and the present complaint has been instituted on 05.01.2016 so the mobile in question under the warranty at the time of filing this complaint.    

The complainant approached the OPs for repair of this mobile on 24.08.2015 and thereafter also but the said service center recorded noting on job order Ex.C-2 to the effect that set hanging up, screen touch problem, charging, colour fading.  Even, low battery backup was found.  After repair of the mobile set, the same was handed over to complainant.  The problem of battery low backup, touch screen not working, hanging up and colour fading in it.  Thus, virtually statement of complainant suffered through affidavit through Ex.CW1/A is fully believable that he due to defect of hanging of the mobile, its heating up, touch not working, colour fading had approached to Op No.2 time and again for removal of the trouble in the mobile set.  Despite that the trouble in the set is persisting.

It also failed to produce the service carried record of job sheet 24.08.2015-Ex.C-2, by mentioning that what type of defect the OP No.2 had removed/rectified from the mobile in question.

8.       Therefore, statement of complainant through affidavit fully believable that due to inherent defect in the mobile set, the same is not working, despite repeated repairs.  This complaint has been filed for replacement of the mobile set within warranty period, which is to lapse on 02.02.2016.  No one from external appearance will be able to detect the inherent manufacturing defects warranting replacement of Touch Screen which is pivotal role for the mobile using.  However, the mobile set got defective within span of eight months of its purchase.

9.       In case titled as Hind Motor (I) Ltd & Anr. Tata Motors Vs Lakhbir Singh & another 1(2014) CPJ 120 (NC), it has been laid that in case inherent defect in vehicle requiring major repairs after short span of eight months, found, then the vehicle should to be replaced, due to deficiency in services.  Same is the position in this case.  So by applying the analogy of law laid down in the above said case, this complaint deserves to be allowed.

10.     It may be stated that inspite of the fact that the mobile in question was within warranty, but OP No.2 had refused to repair the same free of cost and had demanded repair charges from the complainant, which it was not suppose to demand from the complainant, therefore, it is deficient in providing services to complainant and is liable to compensate him. Since, the OP No. 2 is the authorized Service Centre of OP No. 3, therefore the Op. No. 3 being manufacturer is vicariously liable for the act and conduct of the OP No.2 and thus we do not hesitate to conclude that the OP No. 3 is also liable to compensate the complainant alongwith the OP No.2

11.     Consequently, this complaint is allowed with directions to OP No.2&3 to deliver a new defect free Mobile to complainant free of cost with fresh warranty. In the alternative OP No.3 through Op No.2 is directed to return amount of Rs.7,500/- to complainant alongwith interest @9% per annum from 02.02.2015 till date of payment. Amount of Rs.10,000/- allowed as compensation on account of mental agony and physical harassment and Rs.5,000/- allowed as litigation expenses in favour of complainant and against OP No.2&3.            

The Op No.2&3 are further directed to comply with the aforesaid directions jointly or severally within a period of 30 days from the date of receipt of certified copy of this order.

12.       The certified copies of this order be supplied to the parties free of costs, as per rules and file be indexed and consigned to the Record Room.

Dated:  21.07.2016

 

  

(Kanwaljeet Singh)                                                       (Neena Sandhu)

Member                                                                         President