Delhi

North East

CC/322/2015

Snehlata Sehgal - Complainant(s)

Versus

Bharat Communication Centre - Opp.Party(s)

23 Oct 2018

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 322/15

 

In the matter of:

 

	Snehalata Sehgal W/o Sh. Bal Kishan Sehgal R/o House No. 2106 DDA Janta Flats, Grounds Floor, GTB Enclave, Delhi-110093.	Complainant
	Versus
1.         2.       3.	Bharat Communication Centre Through its Proprietor B-26, 1st Floor, Near Durgapuri Chowk, East Jyoti Nagar, Shahdara, Delhi-110032.   E-Zone, Through Its Proprietor EDM Mall, Plot No.1 Kaushambi, Ghaziabad, U.P.-201010   Samsung India Electronic Pvt Ltd Through their Director A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate New Delhi-110044.	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

03.09.2015 18.10.2018 23.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the case giving rise to the present complaint are that the complainant had visited EDM Mall, at Kaushambi, Ghaziabad and had visited OP2 outlet asking to show an Android Smart Phone for which the OP2 showed a Samsung Galaxy A7, manufactured by OP3 and on its representation and enticement the complainant purchased the said mobile phone bearing IMEI No. 359038060957567 on 20.06.2015 vide invoice no. 91674391 for a sum of Rs. 26,189/- inclusive of Rs. 199/- for external Bluetooth device which, after the complainant desealed the box, discovered that the company was under the obligation to give the same free with hands free. Further there was no warranty card issued by OP2 on behalf of OP3 despite OP3 giving 12 months of manufacturing warranty. The complainant has submitted that within 45 days of purchase, the said handset as well as its charger started getting heated, there was hanging and getting stuck problem and very low sound was coming from ear piece of mobile handset. The complainant lodged the complaint on the customer care of OP3 on 17.08.2015 and was asked to download app SMART TUTOR which on downloading deleted the cached memory of the mobile. However the problem in the mobile could not rectify. The complainant wrote an e-mail on 28.08.2015 to OP3 and thereafter visited the OP1, service centre of OP3 where she was made to sign on several forms and papers and without her permission OP1 changed the complete software of the mobile handset in question from KITKAT version to LOLLYPOP and in the process deleted all the apps which were preexisting causing huge data loss to the complainant. The complainant thereafter lodged complaint on customer care on 29.08.2015 but to no avail. Thereafter, complainant wrote several e-mails to OP3 on 30.08.2015 and 31.08.2015 when finally on 01.09.2015, on checking her e-mail the complainant saw an e-mail from the desk of OP3 and the complainant contacted on the number given therein and requested for replacement of the mobile which was blatantly refused by OP3. Therefore the complainant was constrained to file the present complaint before this Forum citing reasons of having being sold a defective mobile phone by OPs, changing its software and causing mental harassment and agony and prayed for issuance of directions to the OPs to refund Rs. 26,189/- towards cost of mobile and Bluetooth alongwith interest thereon @18% from date of purchase i.e. 20.06.2015 till realization, Pay Rs. 1Lac towards loss of data, mental harassment and agony and Rs. 25,000/- litigation.

Complainant has annexed copy of tax invoice dated 20.06.2015, copy of warranty information, copy of print out of warranty terms and condition, copy of e-mails dated 30.08.2015, 31.08.2015 and 01.09.2018 between complainant and OPs.

2. Notice was issued to OPs on 07.09.2015. None appeared for OP2 despite service. An affidavit by the complainant alongwith photographs that it is working at the given address and intentionally avoiding service of summons and was therefore proceeded against ex-parte vide order dated 08.12.2015. OP1 and OP3 filed its joint written statement on 24.11.2015 in which it took the preliminary objection that the complainant had purchased the subject mobile in June 2015 from OP3 in good condition after having full satisfaction with the mobile and there was no manufacturing defect in the mobile phone in question since the problem arose therein due to mishandling of the phone by the complainant totally due to her fault. The OPs further contended that the complainant adamantly demanded refund / replacement of the said mobile which was declined by OP1 and OP3 since the issue pertained to the service provider i.e. OP1 and not OP3. The OP3 submitted that there was a software problem in the said handset which was resolved by OP1 after which the mobile was working fine and relied upon judgment of Hon’ble National Commission in Shiv Prasad Paper Industries Vs Senior Machinery Co. I (2006) CPJ 92 (NC) in which the Hon’ble National Commission has settled the law that an equipment or machinery cannot be ordered to be replaced if it can be repaired.
3. Rejoinder to the written statement was filed by the complainant in rebuttal to the defence taken by the OP in which the complainant reiterated her grievance and denied the defence taken by the OP by stating that such objection have been raised by OP for the sake of raising them and they have provided deficient service by adopting unfair trade practice to defeat lawful right of the complainant.
4. Evidence by way of affidavit was filed by the complainant in reproduction / reemphasis of the averments made in the complaint.
5. Evidence by way of affidavit was filed by OP in which OP relied upon the judgment of Hon’ble Supreme Court in Interglobe Aviation Ltd Vs N. Satchidanand (2011) 7 SCC 464 and Tata Motors Vs Deepak Goyal passed by Hon’ble NCDRC in RP No. 2309/2008 and Vikram Bajaj Vs Hind Motors India Ltd and Anr. (2009) II CLT 670 to buttress its arguments of complainant’s failure to prove deficiency of service in the product under dispute, onus to prove manufacturing defect and complainant’s failure to produce any expert evidence to prove manufacturing defect in said mobile.
6. Written arguments were filed by the complainant as well as OP3 in support of their respective grievance / defence.

The complainant during the course of arguments argued that the subject Samsung Galaxy Note 7 has been banned in Airlines Globally due to reports of the device catching fire rendering the subject mobile unusable as being dangerous and prayed for relief in the complaint.

7. We have heard the rival contentions of both the parties and perused the documentary evidence placed before us.

It is not in dispute that the subject mobile phone Samsung Galaxy A7 purchased by the complainant did have software problem which was admitted by the OP1 and OP3 in its written statement and was rectified by them as per their version. However notwithstanding the same, the problem in the mobile phone persisted as is evident from the e-mails dated 30.08.2015 and 31.08.2015 written by the complainant to OP3 regarding heating problem which in perspective of various news articles with regard to the said mobile phone (Samsung Galaxy A7) being banned from several airlines due to the device catching fire cannot be ignored and is life threatening. However, the OPs paid scant regard to the concern raised by the complainant despite the mobile phone being under warranty to be considered for replacement by the OPs.

8. We therefore are of the view that the OPs are found deficient in service and the complaint merits favorable decision. We therefore allow the present complaint and direct the OPs jointly and severally to refund Rs. 26,189/- towards the cost of the mobile to the complainant alongwith interest @9% thereon from the date of filing of the complaint till realization. We further direct the OPs jointly and severally to pay a sum of Rs. 5,000/- towards compensation for mental harassment and agony and Rs. 3,000/- towards cost of litigation to the complainant. Let the order be complied within 30 days from the date of receipt of copy of this order.         
9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  23.10.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member