Order dictated by:
Sh.Anoop Sharma,Presiding Member
1. Rishi Soni has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that complainant purchased one Mobile phones Samsung Galaxy having IMEI No. 356273/07/367344/2 manufactured by opposite party No.2 from opposite party No.1 for a sum of Rs. 15,500/- against Invoice No. 4545 dated 16.1.2016. After purchase of the mobile handset , it started giving troubles of charging, missing Hang, processing slow for which the complainant opposite party No.1 , who referred the complainant to the service centre Y.P. Enterprises i.e. opposite party No.3, authorized service centre of opposite party No.2. The said service centre returned the mobile after making some adjustment and repairs on the spot . Thereafter in the month of May, 2016 the problem of display occurred in the mobile set . The same was given to service centre on 16.5.2016 against job card, however the opposite party No.3 shown the said mobile set out of warranty while the same was within warranty period. Opposite party No.3 has kept the mobile set with him and has neither repaired it nor exchanged the same with the new one . But on the visit of the complainant, opposite party No.3 started demanding money from the complainant for replacing its defective parts. Vide instant complaint, complainant has sought for the following reliefs:-
(i) Opposite parties be directed to exchange the defective mobile set with new one or in the alternative to pay back Rs. 15500/- alongwith interest @ 12% p.a. from the date of bill till payment ;
(ii) Compensation to the tune of Rs. 10000/- alongwith adequate litigation expenses may also be awarded.
Hence, this complaint.
2. Upon notice opposite party No.2 appeared and filed written version taking certain preliminary objections therein inter-alia that the mobile handset in question has been badly mishandled physically by the complainant as the “display” of the handset was found to be broken when handset was submitted before opposite party No.3 on 16.5.2016. This fact was duly mentioned in the job sheet issued by opposite aprty No.3. Due to physical damage, repair of handset was not covered under warranty and repair was to be done on chargeable basis. The estimate of repair Rs. 6300/- was given to the complainant but it was not approved by the complainant. Hence, handset could not be repaired and returned to the complainant ; that the handset in question has been alleged to be purchased on 16.1.2016 and for the first time t he handset was submitted with opposite party No.3 on 16.5.2016 after 5 months of purchase. On inspection of handset by opposite party No.3, the handset was found to be physically mishandled as the “display broken” which shows that there is no inherent defect in the handset and rather it has been mishandled by the complainant . Due to breakage of handset it was not covered under warranty and repair was to be done on chargeable basis . 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 i.e. authenticated report of independent expert ; that the complainant has sought replacement of mobile which is not permissible under the law and also under the terms of warranty. The replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. That for any defect developed after the lapse of warranty or defect due to physical damage, the opposite party is not responsible for the same. In the present case, LCD display of the handset was found to be broken due to falling or some other physical impact. Hence, the handset was not covered under warranty and repair was on chargeable basis only. The answering opposite party or its service centre has never denied after sale service to the complainant and they are still ready to provide service to the complainant but on chargeable basis. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Written version on behalf of opposite parties No.1 & 3 not filed as such their right to file written version has been forfeited vide order dated 28.11.2016.
4. In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A, bill dated 16.1.2016 Ex.C-1, job sheet dated 16.5.2016 Ex.C-2 and closed his evidence.
5. To rebut the aforesaid evidence Smt.Preeti Mahajan,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Sh.Anindya Bose, Deputy General Manager Ex.OP2/1, copy of warranty card Ex.OP2/2 and closed the evidence on behalf of opposite party No.2.
6. We have heard the ld.counsel for the complainant as well as ld.counsel for opposite party No.2 and have carefully gone through the record on the file.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased the mobile Phone make Samsung Galaxy having IMEI No. 356273/07/367344/2 from opposite party No.1 for a sum of Rs. 15,500/- on 16.1.2016, copy of the cash memo/bill accounts for Ex.C-1. It was the case of the complainant that during warranty period i.e. in May 2016, the problem of display occurred in the mobile set and it was given to service centre on 16.5.2016 . However the opposite party No.3 has shown that the mobile set was out of warranty while the same was within warranty period . It has further been alleged that opposite party No.3 has kept the mobile set with him and has neither repaired it nor exchanged the same .
8. Whereas the case of the opposite party No.2 is that the mobile handset in question has been physically mishandled by the complainant as the “Display” of the handset was found to be broken when the handset was submitted before opposite party No.3 on 16.5.2016. It was submitted that due to physical damage, repair of handset was not covered under warranty and repair was to be done on chargeable basis. The estimate of repair Rs. 6300/- was given to the complainant . But the complainant was not ready to pay the repair charges, as such the handset could not be repaired and returned to the complainant. Ld.counsel for the opposite party No.2 has further contended that replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. That for any defect developed after the lapse of warranty or defect due to physical damage, the answering opposite party is not responsible for the same. In the present case “LCD Display” of the handset was found to be broken due to falling or some other physical impact, as such the handset was not covered under warranty and repair was on chargeable basis.
9. From the appreciation of the facts and circumstances of the case, it becomes evident that the mobile handset became out of order due to mishandling of the same by the complainant. The complainant has not adduced on record any expert report to contend that the handset in dispute was suffering from any manufacturing defect. Absolutely there is no deficiency of service or breach of contract on the part of the opposite party No.3 or the manufacturer of the mobile handset in dispute. It is further contended that for proving the manufacturing defect, report of expert is essential. Reliance in this connection has been placed on Sukhwinder Singh Vs. Classic Automobile Shastri Nagar, Jharkhand 2012 NCJ 917(NC) wherein it has been laid down that to prove the manufacturing defect in vehicle a report of expert is essential or some other evidence showing manufacturing defect should have been adduced . Mere fact that the product was taken to the service station for one and two times does not ipso facto proves the manufacturing defect, but the complainant has filed the complaint with malafide intentions to extract money from the replying opposite parties by dragging them in this frivolous and baseless litigation. However, the opposite party in its written version has submitted that the mobile handset in question has been physically mishandled by the complainant as the “Display” of the handset was found to be “broken” and the same was not covered under warranty and repair was to be done on chargeable basis. In this regard opposite party has placed on record warranty conditions i.e. Ex.OP2/2 vide which it has been specifically mentioned under condition No. 7 that “In case of any damage to the product, misuse deducted by the authorized service centre, warranty conditions are not applicable and repair will be done subject to availability of parts and on chargeable basis”. The complainant has not produced any evidence that the defect occurred in the mobile handset is a manufacturing defect . The opposite parties are still ready to repair the mobile handset on chargeable basis.
10. Consequently, instant complaint is partly allowed and opposite parties are directed to repair the mobile handset in dispute to the satisfaction of the complainant on chargeable basis within a period of one month of the receipt of copy of the order. The complainant is also awarded Rs. 2000/- as compensation besides cost of litigation are assessed at Rs. 1000/-. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 5.5.2017
