Delhi

North East

CC/235/2018

Sh. Shailen Roy - Complainant(s)

Versus

Bharat Communication & Ors. - Opp.Party(s)

17 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.235/18

In the matter of:

 

	Shri Shailen Roy S/o Sh. Shiv Kumar Roy R/o 1/5438, Gali No. 15 Balbir Nagar Ext., Shahdara, Delhi-1100032	Complainant
	Versus
1.           2.         3.	Bharat Communication (Service Centre) A-245, Durgapuri Ext., 100 Futa Road, Delhi-110093   Samsung India Electronics Pvt. Ltd., A-25, Ground floor, Front Tower, Mohan Co-operative Industrial Estate, New Delh-110044   Gupta Enterprises At 26/26, Street No. 11 Vishwas Nagar, Shahdara Delhi-110032	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                        DATE OF ORDER  :

15.11.2018 02.11.2022 17.04.2023

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

 

 

 

 

ORDER

Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant had purchased a mobile phone make Smart J7 Samsung manufactured by the Opposite Party No. 2 from its dealer i.e. Opposite Party No. 3 dated 18.01.2018 for a sum of Rs. 16,900/- which was having warranty of one year. Within a period of 15 days the mobile phone was hanging and the problem of auto blank in display of the phone was occurred and then the Complainant visited he Opposite Party No. 3 and complained regarding the phone, on which the Opposite Party No. 3 suggested the Complainant to approach the service center of the Opposite Party No. 2 i.e. Opposite Party No. 1. After that the Complainant visited the Opposite Party No. 1 on 06.02.2018 and disclosed regarding the problem in the mobile phone and then the representative of the Opposite Party No. 1 created a job sheet. After checking the mobile phone, representative of the Opposite Party No. 1 disclosed that there is some software problem in the mobile and it required software installation/flashing and assured that after installing the software mobile would work properly and then they did so. Even after installation of the software, the mobile worked properly for few days only and in the month of April 2018 the problem like earlier was again started to come and the mobile was hanging and heating also and some of the functions in the mobile was automatically going on and the display of the mobile phone was not functioning properly, due to which the Complainant again approached the Opposite Party No. 1 and then the Opposite Party No. 1 created a job sheet again and told that the mobile again required reinstallation of software again and after installation of the same, the problem was resolved and assured that now the mobile phone would work properly. Despite assurance of the Opposite Party No. 1 the mobile worked properly for a week only and the same problem again begun to come as the mobile was hanging and the phone again started to heat and some of the functions in the mobile was automatically going on and the display of the mobile phone was not functioning properly. After that the Complainant again visited the Opposite Party No. 1 on 13.04.2018 and this time the representative of the Opposite Party No. 1 said that the Complainant had to deposit the mobile phone with them as minimum 5-6 hours are required to resolve the problem and created a job sheet on the same number. Then the Complainant deposited the mobile phone with the Opposite Party No. 1 and its representative asked the Complainant to receive the mobile next day i.e. 14.04.2018. On 14.04.2018, the Complainant visited the Opposite Party No. 1 to collect the mobile and then the representative of the Opposite Party No. 1 disclosed that they have resolved all the issue in the mobile phone and assured that now the mobile would work properly. Despite installation of the software number of times, the mobile was still having the same problems, besides it, the mobile phone was not working properly  and in compelling circumstances the Complainant again visited the Opposite Party No. 1 on 26.10.2018 and narrated his entire grievance to the Opposite Party No. 1 and after checking the mobile the representative of the Opposite Party No. 1 disclosed that there are some hardware issue and for resolving the same the Complainant had to deposit the mobile phone for two days.  On 28.10.2018 when the Complainant visited the Opposite Party No. 1 and checked the said mobile phone, he found that the same problem was there and issues were not resolve. Then the Opposite Party No. 1asked the Complainant to receive the phone after a day. On 29.10.2018, the Complainant again visited the Opposite Party No. 1 to get his mobile phone back but the representative of the Opposite Party No. 1 said that his phone was not ready yet and the Complainant would have to wait for further a day.. On 31.10.2018, the Complainant again visited the Opposite Party No. 1 and representative of the Opposite Party No. 1 disclosed that there is hardware problem and the mother board of the phone was required to be changed. When the Complainant requested the Opposite Party No. 1, they disclosed that the Complainant would have to pay for the same and when the Complainant asked them that his mobile phone was is warranty period, then why he should pay for the same but the Opposite Party No. 1 told that it is their prerogative to decide as to which mobile they had to repair under warranty period. Complainant requested the representative of Opposite Party No. 1 to meet their manager in order to know the reason but they misbehaved and flatly refused to rectify the problem or replacing the mobile phone despite the fact that the mobile phone of the Complainant was under warranty. The Complainant has prayed to direct the Opposite Parties to replace the mobile set or to refund Rs. 16,900/-,  Rs. 75,000/- toward the mental agony, harassment and Rs. 25,000/- on account of litigation expenses.
2. None has appeared on behalf of the Opposite Party No. 1 and Opposite Party No. 3 to contest the case. Therefore, Opposite Party No. 1 and and Opposite Party No. 3 proceeded against ex-parte vide order dated 02.04.2019.

Case of the Opposite Party No. 2

3. The Opposite Party No. 2 contested the case and filed its written statement. It is submitted by the Opposite Party No. 2 that the Complainant had purchased a mobile phone make Samsun Smart J7 on 18.01.2018 for an amount of Rs. 16,900/- from dealer after having his full and final satisfaction regarding the said mobile phone. The said phone was purchased by the complainant in good and proper working condition after the complete satisfaction of the Complainant. On 06.02.2018, the Complainant had raised an issue regarding facing problem in the functioning of the said handset with the authorized dealer from where he had purchased the said handset. The dealer had suggested the Complainant to get the said handset checked from the authorized service centre of the Opposite Party No. 2. After having inspected the said handset by the engineers of the Opposite Party No. 1, it was revealed to the Complainant that there was no fault in the said handset rather the software of the said phone needs to be updated. The engineer of the Opposite Party No. 2 had updated the software of the said handset free of cost as the said handset was under a warranty period of one year and after that handed over the same to the Complainant in proper working condition. The Complainant approached the customer support representative of the Opposite Party No. 2 again on 05.04.2018 regarding facing problem in the functioning of the said phone. Again, when the engineers of the Opposite Party No. 2 inspected the said phone, they found that the said phone was functioning in proper working condition and found no defect in the said phone. However, in order to maintain good relations with its customers, the engineers of the Opposite Party No. 2 had again updated the software of the said phone free of cost, which was otherwise chargeable to other customers. On 13.04.2018, the Complainant had again reported to the customer support staff of the Opposite Party No. 2 regarding facing issues in the functioning of the said phone like automatic working of the applications, automatic connecting calls and automatic on/off of the flight mode. However, when the engineers of the Opposite Party No. 2 inspected he said handset, they found that the said handset was operating in good and proper condition. After keeping the said phone under observations for almost 6 hours, there was no defect found in the functioning of the said mobile phone and therefore, the complaint of the Complainant was cancelled by the authorized service centre of the Opposite Party No. 2. On 16.08.2018, the Complainant reported to the customer support staff of the Opposite Party No. 2 regarding facing improper operation of the said handset like automatic working of the applications, automatic connecting calls and automatic on/off of the flight mode but again on inspection, it war found that the said handset was operating in proper working condition and again the complaint of the complainant was cancelled by the Complainant with the remarks no defects found. On 26.10.2018, the Complainant with malafide intentions and ulterior motives have reported to the customer support staff that the said handset was not functioning properly and the applications in the said handset starts working automatically, calls were connecting automatically and the flight mode in the said handset automatically turns on/off again and again. It is pertinent to note herein that the Complainant had reported the said issue for the fifth time and again on inspection of the said handset by the engineers of the Opposite Party No. 2, no defect was found in the handset and the said handset was working in good and proper working condition. The complaint of the Complainant was cancelled on the pretext of no defect found and the said fact was intimated to the complainant and it was informed to the Complainant to take his handset back from the service centre in good working condition. It is pertinent to mention herein that the warranty period of the said handset expires on 18.01.2019, so therefore, the Complainant with malafide intentions and ulterior motives had deliberately left his handset with the authorized service centre of the Opposite Party No. 2 so that afterwards he can blame the Opposite Party No. 2 for causing harassment. The is very well aware of the fact that the services of the Opposite Party No. 2 will be chargeable once the warranty period of the said handset expires and therefore he deliberately with rancorous intentions left his handset in the authorized service centre of the Opposite Party No. 2. The Opposite Party No. 2 had at no point of time caused deficiency in its services. It is pertinent to mention herein that on every occasion, the said handset of the Complainant was examined and inspected by the engineers of the Opposite Party No. 2 free of cost without having any defect in the said handset. The authorized agents of the Opposite Party No. 2 on various occasions informed the Complainant that his handset is lying with the Authorized service centre in good and proper working condition and told him to collect it but the Complainant with malafide intentions and ulterior motives did not collect the same. On 06.12.2018, the Authorized Service centre of the Opposite Party No. 2 had wrote a letter to the Complainant that his handset is lying with them in appropriate workind condition and advised him to collect the same within a period of one month failing which the Authorized Service Centre or the Opposite Party No. 2 would not be liable for any sort of loss caused to the said handset, but the Complainant deliberately did not take back his handset as he was very well aware of the fact that the warranty period of the said handset was going to expire soon. It is pertinent to mention here that whenever the Complainant approached the Opposite Party No. 2 for any issue, the same was addressed by the Opposite Party no. 2 and the Opposite Party No. 2 is still ready to resolve the issue (if any) as per the warranty policy. Hence, there is no any kind of deficiency of service on behalf of the Opposite Party No. 2. The complaint filed by the Complainant does not fall within the definition of a “consumer dispute” under the Consumer Protection Act, 1986 as the Complainant has failed to prove any manufacturing or other defect in the Product in question nor any deficiency in service on behalf of the Opposite Party No. 2. Hence, the averments and/or allegations made therein are false, frivolous, baseless and misconceived and the complaint is liable for rejection and the same may kindly be dismissed with costs. As per condition of warranty, replacement of the product or refund is expressly excluded and warranty covers only repair or replacement of any part thereof which needs replacement or repair for any reason of defective workmanship or defective components, which makes it clear that when there is defect in a part, it shall only be repaired and/or replaced by the opposite parties. Further, in case of damage, the product can only be repaired on chargeable basis paid by the customer. In the present case, the Complainant has failed to prove any negligence on the part of the answering Opposite Party and that as a consequence thereof, loss or injury was suffered by him. Therefore, the complaint of the Complainant is liable to be dismissed on this ground only.

Rejoinder to the written statement of Opposite Party No. 2

4. The Complainant filed rejoinder to the written statements of Opposite Party No. 2 wherein the Complainant has denied the pleas raised by the Opposite Party No. 2 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

5. The Complainant in support of his case filed his affidavit wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 2

6. To support its case Opposite Party No. 2 has filed affidavit of Sh. Anup Kumar Mathur, Authorized representative of Opposite Party No. 2 having registered office at 6^th floor, DLF Centre, Sansad Marg, New Delhi-110001. In his affidavit, he has supported the case of the Opposite Party No. 2 as mentioned in their written statements.

Arguments & Conclusion

7. We have heard the Complainant and Counsel for Opposite Party No. 2. We have also perused the file and written arguments filed by the Complainant and Opposite Party No. 2. The case of the Complainant is that he had purchased an mobile phone manufactured by Opposite Party No. 2 on 18.01.2018 for a sum of Rs. 16,900/-. Within 15 days of the purchase of the said mobile phone was having problem. The complainant approached the Opposite Party No. 3 i.e. seller of the phone about the same and Opposite Party No. 3 advised the Complainant to approached the Service Centre i.e. Opposite Party No. 1 for the same. Complainant registered a complaint with Opposite Party No. 1 on 06.02.2018 and Opposite Party No. 1 created a job sheet for the same. After checking the mobile phone representative of the Opposite Party No. 1 informed the Complainant that there is some software problem in the phone and it required software installation and assured that after installation of software the phone would work properly and then they did so. As per the Complainant, even after installation of the software the mobile phone worked properly for few days only and in the month of April 2018 problem in the phone re-occurred and he again approached the Opposite Party No. 1 on 05.04.2018. Opposite Party No. 1 again created a job sheet for the same and told the Complainant that it required reinstallation of software again and after installation of the software the problem was resolved and assured that now mobile phone would work properly. Despite assurance of the Opposite Party No. 1 the phone worked properly for one week only and the same problem reoccurred again. Complainant again approached the Opposite Party No. 1 on 13.04.2018 and this time representative of the Opposite Party No. 1 told the Complainant that he had to deposit the said mobile phone to resolve the problem and created a job sheet for the same. After doing the necessary repair in the phone Opposite Party No. 1 returned back the phone to the Complainant with assurance that now it will work properly. In spite of repairing of the phone done by the Opposite Party No. 1 due to mal functioning of the phone the Complainant again registered the complaint with Opposite Party No. 1 on 26.10.2018 and deposit the phone with Opposite Party No. 1 for necessary repair. After several visited to Opposite Party No. 1, on 31.10.2018 representative of the Opposite Party No. 1 disclosed that there is a hardware problem and motherboard of the phone required to be changed and for the same Complainant has to pay. Complainant refused to pay any charges for repair since the phone was within warranty period. Hence, there is deficiency of service on the part of Opposite Parties.
8. Opposite Party No. 2 admitted that the Complainant had purchased the mobile phone on 18.01.2018 and also admitted that the Complainant had faced problem with the phone and approach their service centre on 06.02.2018. It is submitted by the Opposite Party No. 2 that there was no fault in the said mobile phone rather the software of the phone need to be updated which was done by Opposite Party No. 1. It is also admitted by the Opposite Party No. 1 that the Complainant approached time and again to the service centre of the Opposite Party No. 2 regarding malfunctioning of the phone and their representative rectify the problem faced by the Complainant in the said mobile phone. It is also submitted by the Opposite Party No. 2 that every occasion the said phone was examined and inspected by the representative of the Opposite Party No. 2 and rectify the problem being faced by the Complainant with his phone. Opposite Party No. 2 also written to the complainant on 06.12.2018 to take phone from Opposite Party No. 1 but Complainant failed to do the same. Opposite Party No. 2 also submitted that whenever, the Complainant approached the Opposite Party No. 2 for any issue the same  was addressed by the Opposite Party No. 2 and the Opposite Party No. 2 is still ready to resolve the issue (if any) as per the warranty policy. Hence, there is no deficiency of service on the part of Opposite Party No. 2.
9. In view of above discussion, it is admitted by the Opposite Party No. 2 that there was malfunctioning in the said mobile phone and for the same the Complainant approached them on various occasion and they provided necessary service to the complainant. It is clear from the fact that the phone was having problem within 15 days of the purchase of the said phone. After various visits to the Opposite Party No. 2 problem remain same and the phone was not working properly. The normal buyer of the phone will not understand whether the phone is facing software problem or hardware problem as his main concern was mainly proper functioning of the phone and in this case Complainant faced problem with new phone and he had to approach Opposite Parties time and again for rectification of the problem being faced by him on account of phone. Hence, in our considered opinion, this case is covered under section 2(6) (II) of Consumer Protection Act, 2019 which read as under: 2(6)”complaint”
10. (I)..............

(II) “The goods bought by him or agreed to be bought by him suffer from one or more defects”read with section 2 (10) of Consumer Protection Act, 2019.

10.  Hence, the complaint is allowed. Opposite Party No. 2 is directed to pay Rs. 16,999/- to the complainant along with interest @ 6 % p.a. from the date of filing the complaint till recovery. Opposite Party No. 2 is also directed to pay an amount of Rs. 15,000/- to the Complainant on account of mental harassment and litigation expenses along with interest @ 6 % p.a. from the date of this order till recovery.  
11. Order announced on 17.04.2023.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Surinder Kumar Sharma) President