Date of Filing :   01.04.2013

                                                                        Date of Order :   20.04.2016.

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

                 DR. T.PAUL RAJASEKARAN, M.A PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.300/2013

WEDNESDAY THIS  20^TH  DAY OF APRIL 2016

C. Anantha Raman,

S/o. C. Chinnaji Row,

4/2, Alangatha Street,

Triplicane,

Chennai 600 005.                                       ..Complainant

                                      ..Vs..

Samsung Authorized Mobile

Service Centre, Cell Tech,

Manager,

No.4/1, Triplicane High Road,

Triplicane,

Chennai 600 005.                       ..Opposite party   

For the Complainant                   :   Party in person.  

For the opposite party                :   M/s. V.V. Giridhar  

Complaint under section 12 of the Consumer Protection Act 1986.  The  complaint is filed seeking direction against the opposite party to replace with the new mobile or to refund the mobile phone price of Rs.6,850/- with interest and also to pay a sum of Rs.1,00,000/- as compensation  and also to pay a sum of Rs.200/- as cost of the complaint to the complainant.  

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

        The complainant submit that he  has purchased mobile phone i.e Samsung 5222 which has been manufactured by the opposite party from their authorized dealer,  for a sum of Rs.6850/-  on 24.4.2012.  The said mobile phone  due to its defect in  functioning i.e problem of Auto restart and refreshing Sim problem was given to the opposite party’s service centre on 02.06.2012, 03.01.2013 and 13.02.2013,  on the above said three  occasions the said mobile phone was attended by the opposite party’s service centre and was return back saying the problem was rectified.  Again for the same problem the said mobile phone was handed over to the opposite party service centre on 26.02.2013.  

2.     The complainant himself have stated on the 4^th occasion on 26.02.2013 the said mobile phone was handed over to the same   authorized service centre of the opposite party for the same problem which was occurred in previous occasions and the complainant  has demanded for replacement of new one for the said cell phone,  as the said problem repeatedly occurred in the said mobile phone within the warranty period as it was due to a manufacturing defect.  Though the complainant has demanded for the replacement of the said mobile phone with new one, they have not complied the same.    Accordingly the complainant  sent notice to the opposite party  on 12.10.2014, even after the receipt of the same the opposite party have not come forward to replace the said mobile phone.      As such the opposite parties have committed deficiency of service which caused mental agony and hardship to the complainant.   As such the complainant has sought for claiming replacement of the mobile phone by new one or for refund of the cost of the mobile phone with compensation and cost of the complaint. Hence the complaint.   

Written Version of  opposite party is in briefly as follows:

3.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The opposite party submit that he purchase of the complaint mentioned mobile phone and the facts that the said mobile phone due to defective functioning i.e problem of Auto restart and refreshing sim problem was handed over to their authorized service centre for two occasions and the same was attended and rectified and the mobile phone was handed over to the complainant.  Again the said mobile phone for the same problem of defect was handed over to the service centre on 26.02.2013.  However after the said mobile phone was repaired though the complainant was asked to take delivery of the mobile phone the complainant refused to take delivery of the mobile phone, as such there is no deficiency of service on the part of the opposite party.    Hence the opposite party is not liable to compensate as prayed for and the complaint is liable to be dismissed.    

4.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of  Opposite party not  filed and no document was marked on the side of the  opposite party.

5.         The points that arise for consideration are as follows:-

1)   Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled to the  reliefs sought for?.

6.     POINTS 1 to 2 : -   

Perused the complaint filed by the complainant, the written version filed by the opposite  party, proof affidavits filed by the complainant and the opposite party and the documents Ex.A1 to Ex.A7 filed on the side of complainant  and considered the arguments of the both sides.  

7.     Considering the both side case there is no dispute that complainant has purchased complaint mention mobile phone i.e Samsung 5222 which has been manufacture by the opposite party from their authorized dealer under Ex.A1 Invoice for Rs.6850/-  on 24.04.2012.  The said mobile phone  due to its defect in  functioning i.e problem of Auto restart and refreshing sim problem was given to the 1^st opposite party’s service centre on 02.06.2012, 03.01.2013 and 13.02.2013,  on the above said three  occasions the said mobile phone was attended by the opposite party’s service centre and was return back saying the problem  was rectified.  However for the same problem the said mobile phone was handed over to the opposite party service centre on 26.02.2013 and the above facts are reveals from the Ex.A2 and Ex.A3. 

8.     The complainant himself have stated on the 4^th   occasion on 26.02.2013 the said cell phone was handed over to the same   authorized service centre of the opposite party for the same problem which was occurred in previous occasions and the complainant has demanded for replacement of new one for the said cell phone, as the said problem repeatedly occurred in the said mobile phone within the warranty period as it was due to a manufacturing defect.  Though the complainant has demanded for the replacement of the said mobile phone with new one, they have not complied the same and also sent notice dated 12.10.2014 Ex.A4 to the opposite party, even after the receipt of the same the opposite party have not come forward to replace the said mobile phone, as such the complainant has filed this complaint  claiming replacement of the mobile phone by new one or for refund of the cost of the mobile phone with compensation for which suffering of  mental agony and hard ship and litigation cost against the opposite party.

9.     Whereas the opposite party are resisted the complaint by admitting the purchase of the complaint mentioned mobile phone and the facts that the said mobile phone due to defective functioning i.e problem of Auto restart and refreshing sim problem was handed over to their authorized service centre for two occasions and the same was attended and rectified and the mobile phone was handed over to the complainant.  Again the said mobile phone for the same problem of defect was handed over to the service centre on 26.02.2013.  However after the said mobile phone was repaired though the complainant was asked to take delivery of the mobile phone the complainant refused to take delivery of the mobile phone, as such there is no deficiency of service on the part of the opposite party.  The demand made by the complainant for replacement of the said mobile  by new one or to refund of the cost of the mobile phone is not sustainable as per the terms and conditions of the purchase made by the complainant.  Therefore the  complaint filed by the complainant is not maintainable and liable to be dismissed.

10.    As per the above case of the opposite party, is that the said cell phone was after receipt of their service center on 26.06.2013 as per receipt Ex.A3, the said mobile phone was attended by their technicians and was repaired and the defects are rectified and the complainant was asked to take delivery of the mobile phone, the complainant refused and not come forward to take delivery of the said mobile phone, and complainants demands are unsustainable.  However considering the facts and circumstances of this case, the complaint mention mobile phone purchased by the complaint due to defective functioning within few days from the date of purchase was taken to the opposite party’s authorized service center for repair, repeatedly for four  occasions and was attended by them as mentioned above which is within the warranty period.  Among the said four occasions, earlier three occasions was repaired and handed over to the complainant, however due to the same problem of defect and the said mobile phone was again handed over to the complainant, by the opposite party on the fourth occasions  with demand of replacement of mobile phone by the complainant cannot said to be un reasonable.     Because the defects in functioning of the said mobile phone  is the Auto restart and refreshing sim problem  which is consider to be a software defect attached with the said mobile phone which appear to be a manufacturing defect.  Further though the said defect was attended by the service centre for three occasions within a short intervals the problem was not rectified completely and it was found again defective on the same problem and was happen to handover to the service center, in the said circumstances the demand made by the complainant for replacement of the said mobile phone with new one against the opposite party which is the manufacturer of the  said mobile phone is valid, reasonable and also sustainable, as such demand is made by the complainant within warranty period.    Further though the opposite party has resisted the such demand made by the complainant by saying that on the 4^th occasion the mobile was attended by the service centre it was the defects was completely rectified and refusal by the complainant to take back the said mobile is un reasonable, there is no evidence of technical report on the side of opposite party before this forum to prove that the said mobile phone was made ready after rectifying the defect in full pledged manner.  In order to prove the same the opposite party contention that the said mobile phone was completely rectified and it is functioning properly the opposite party not even produced the said cell phone before this forum with relevant technician reports.  Therefore the alleged defect of the said mobile phone which was occurred even within few days from the date of purchase and despite of three times it was attended by the authorized service centre of the one and the same problem, which was repeatedly occurred that too within the warranty period on the said fact of the alleged defect of the said phone, the demand made by the complainant for replacement for the cell phone for new one against the opposite party are proper and acceptable one. Therefore the denial of the opposite party for the said demand of the complainant to replace the defective cell phone which suffered by manufacturing defect is amounts to deficiency of service is acceptable.       

11.    Further as argued by the learned counsel for the opposite party the grievance raised by the complainant on the basis of the document Ex.A7, Ex.A8 relating  to the facts of receipt of  “a ceramic mug”  through courier from the opposite party company in the pending proceeding of this case, was sent by  different unit / section of the opposite party company as   bonafide good gustier  in the promotion of business in selling other home need articles manufacture by the opposite party company,  as such   they were not relevant for the present fact of the case is acceptable.  The content of the Ex.A7 also proves the same.

12.    Therefore we are of the considered view that the opposite party is liable to replace the said mobile phone by new one of the similar model at the relevant time before filing of this complaint, demand made by the complainant, whereas the opposite party have not complied the same. Considering the facts and circumstances and in order to avoid multiplicity of proceeding, we are of the consider view   that it is justifiable to direct

the opposite party to refund the cost of the said mobile phone i.e. a sum of Rs.6850/   with interest at the rate of 9% p.a. from the date of demand of legal notice i.e 12.04.2013 to till the date of payment and also to pay a sum of Rs.5000/- as litigation charges. Since the said refund of the said amount is ordered with interest we are not impose payment of any compensation against the opposite party.   Accordingly the points 1 and 2 are answered.

        In the result, this complaint is partly allowed.  The opposite party is directed to refund the cost of the mobile phone Rs.6850/- (Rupees Six thousand eight hundred and fifty only) with interest at the rate of 9% p.a. from 12.04.2013 to till the date of payment and also to pay a sum of Rs.5000/- (Rupees five thousand only)  towards litigation charges to the complainant within six weeks from the date of this order. 

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  20^th   day  of  April   2016.

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 24.4.2012  - Copy of Tax invoice.

Ex.A2- 13.2.2013  - Copy of Service Report.

Ex.A3- 26.2.2013  - Copy of Service Report.

Ex.A4- 12.4.2013  - Copy of legal notice.

Ex.A5-         -       - Copy of Ack. receipt.

Ex.A6- 3.6.2015    - Copy of letter from complainant to the opposite party.

Ex.A7-         -       - Copy of letter from opposite party to the complainant.

Opposite parties’ Exhibits:-   .. Nil ..

MEMBER-I                        MEMBER-II                             PRESIDENT.