Haryana

Kurukshetra

CC/11/2019

Karan - Complainant(s)

Versus

Bala Ji Comm - Opp.Party(s)

Kuldeep Singh

30 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint No.11 of 2019.

Date of Instt.:08.1.2019.

Date of Decision: 30.10.2019.

 

Karan s/o Shri Mohinder Singh, r/o H.No.648/8, Indira Colony, Kurukshetra. 

                                                                        …….Complainant.                                              Versus

 

1. Balaji Communication, Geeta Colony, Sector-17, Opp. Geeta School, Kurukshetra.
2. Bansal Communication, Samsung Service Centre, near Geeta Dwar, Pipli, Kurukshetra.
3. Samsung India Electronics Pvt. Ltd., 20^th to 24^th Floor, Two Horizon Centre, Gold Course Road, Sector-43, DLR PH-V, Gurgaon, Haryana-122202.

                ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Sunil Mohan Trikha, Member.                                                   

Present:     Shri Kuldeep Tanwar, Advocate for the complainant.        

Opposite parties No.1 & 2 ex-parte.

Shri Shekhar Kapoor, Advocate for the opposite party No.3.

 

ORDER

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Karan Tanwar against Balaji Communication and another, the opposite parties.

2.             The brief facts of the complaint are that the complainant is an old user of the so called flagships phones of company of OP No.3 and used phone like S2, S3, S4 and S6 edge etc. On 08.4.2018, he purchased a mobile set Samsung S-9 (64GB) bearing IMEI No.356055090443759 from the OP No.1 for a sum of Rs.57,900/- through card. The said phone was having manufacturing defect from the very beginning and it started to hang, restart, heating and other problems. He approached the OP No.1, who took the phone and gave it to the promoter sitting there who did some settings and said that it will work fine. But surprisingly, there was no improvement in the phone. He contacted the OP No.3 and customer care executive admitted the manufacturing defect in the above mentioned model and admitted that many complaints were coming in the said model. On the advice of said executive, the complainant approached the OP No.2 in evening and told every problem to its executive, who firstly switched off the phone, closed all applications and then brought every settings like lights etc. at minimum and then got phone on charging. He requested that executive to open the job sheet and written down my complaints and his opinion on that, upon which, he denied to open the job sheet. The owner of the service centre Mr. Bansal was very much present there, who told that he came tomorrow and sit for 3-4 hours, then they can check the phone. He told him about the rights of complainant to get the job sheet and make endorsement regarding the same being a lawyer, but the OP No.2 started shouting by misbehaving that they will not give the job sheet. The complainant came back from there and told everything again to the customer care, who assured that serious action will be taken against the OP No.2. The mobile phone was not working properly from the date of its purchasing, thus, it is clear that the same is having manufacturing defect. He visited the OPs various times and requested to replace the defective mobile, but they flatly refused to do so. This way, the OPs are deficient in services. Hence, this complaint.

3.             Upon notice, the opposite parties No.1 & 3 appeared. The OP No.3 filed written statement stating therein that the complainant has not come to this Hon’ble Forum with clean hands and has hidden correct facts. The complainant alleged manufacturing defect in the product, but the alleged defect cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same. It is settled preposition of law that an expert opinion of an appropriate laboratory/cogent evidence is mandatory u/s 13 (1) (c) of CP Act to prove the allegations/averments made by the complainant. Only after receiving the reply to the legal notice, the complainant with regard to complaint of mobile approached the service centre on 08.6.2018 vide call No.4262182851 and reported HEATING, HANGING & CHARGING issue in his mobile. The officials told him that the unit needs to be checked by engineer and for that, the unit needs to be retained by service centre, but the complainant refused to get his mobile repaired and got his mobile back and demanded replacement of mobile, so there is no deficiency on the part of the OP No.3 and prayed for dismissal the complaint against the OP No.3.

                Upon notice, none appeared on behalf of the OP No.2 before this Forum, therefore, he was proceeded against ex-parte vide order dated 18.2.2019.

4.             The learned counsel for the complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-5 and closed the evidence. On the other hand, learned counsel for OP No.3 tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 to Ex.R-4 and closed the evidence. However, on 30.10.2019, when the case was fixed for evidence of the OP No.1 subject to last opportunity, no one appeared on behalf of OP No.1, as such, the OP No.1 was opted to be proceeded against ex-parte on that date.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             The learned counsel for the complainant has argued that the mobile phone in question became defective from the very beginning as it started giving problems like hanging, restarting and heating up. In this regard, the complainant approached the OP No.1 and thereafter OP No.3 many times, but they failed to resolve his grievance. He further argued that after issuance of legal notice, the OP No.1 asked the complainant to visit the service centre at Karnal, where the phone has to be opened, but the complainant refused as the phone was within warranty period. He further argued that the OPs neither repaired the mobile phone nor replaced the same with new one. Moreover, the official of OP No.2 misbehaved with the complainant. On the other hand, the learned counsel for the OP No.3 has contended that alleged manufacturing defect cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same. He further contended that, the complainant approached the service centre on 08.6.2018 with the issue of heating, handing and charging in his mobile, upon which, the officials told him that unit needs to be retained by service centre for its checking, but the complainant refused to get his mobile repaired and demanded replacement of mobile, so there is no deficiency on the part of the OPs.

7.             Admittedly, the complainant purchased mobile phone in question from the OP No.1 on 08.04.2018 for a sum of Rs.57,900/- vide invoice dated 08.04.2018 Ex.C-1. From perusal of Invoice Ex.C-1 and Legal Notice Ex.C-2, it is evident that the complainant purchased the mobile set in question on 08.04.2018 and issued the legal notice to the OPs to replace the same on 05.05.2018 i.e. just after one month from the date of purchase of mobile in question. Meaning thereby, the mobile set in question became defective from the very beginning, due to which, complainant could not take benefit of mobile set in question. Since the OPs failed to resolve the grievance of the complainant either by repairing the mobile or to replace the same, even after issuance of legal notice to them, therefore, the complainant left with no other option except to knock the door of this Forum by filing the present complaint. Moreover, when the OP No.1 asked the complainant to visit its service centre at Karnal, where, the phone will be opened, upon which, the complainant refused to do so, because by doing so, the phone will become warranty void and we found force in this contention of the complainant because at that time, the mobile phone in question was within warranty period and by opening the same, it become warranty void. In these facts and circumstances of the case, we are of the considered view that the mobile phone in question of the complainant became defective from the very beginning and the OPs have failed to resolve the grievances of the complainant in this regard. Hence, the OPs are deficient while rendering services to the complainant.   

8.             In view of the aforesaid discussion, we hereby allow the present complaint against the OPs and direct them in the following manner:-

1. To replace the defective mobile phone in question with the new one of the same model, as purchased by the complainant. If the OPs are not in position to replace the same, then refund the amount of Rs.57,900/-, i.e. the price of the mobile phone.

 

2. To pay Rs.5,000/- as compensation for mental agony and physical harassment suffered by the complainant alongwith litigation expenses.

 

                The OPs are further directed to comply with the aforesaid directions jointly and severally within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.       

Announced in open Forum:

Dt.:30.10.2019.                                                   (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.