Complainant Shivani has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to replace the defective mobile handset with a new mobile handset or to refund the full price of the mobile handset alongwith interest. Opposite parties be further directed to pay Rs.50,000/- as compensation on account of mental agony, harassment, torture and emotional distress suffered by her and any other relief this Hon'ble Commission fit be granted to her against opposite parties.

2.        The case of the complainant in brief is that she purchased a Mobile handset make Samsung Galaxy, J-7 MAX, 352093/09/626101/0  from opposite party no.1 vide Invoice No.178 dated 22.12.2017 for Rs.16,000/- and its warranty was one year. The mobile handset is manufactured by opposite party no.3 who is engaged in the business of manufacturing and selling consumer goods like Mobile Handsets, tabs etc. to the public apart from other activities.  She has further alleged that soon after the Mobile handset brought in use it was found the same is defective, because there is a major problem in touch of the mobile phone, display of the same is not working properly and there are also number of other shortcomings in almost all functions in the mobile hand set on account of manufacturing defect and as such the mobile is unfit for use. She approached the opposite party no.1 and complained the above mentioned defects in the Mobile handset in question who asked her to approach opposite party no.2 being Care Centre of the Company. As per advice of the opposite party no.1, she approached the opposite party no.2 and requested him to do the needful. To her utter surprise, the opposite party told that there is a defect in the touch of the phone, which is required to be replaced. For this purpose the opposite party no.2 demanded Rs.5119/- which she requested the opposite party no.2 that the phone is within warranty period, the opposite party no.2 refused to do anything in the matter and left with no alternative, she paid Rs.5119/- to the opposite party no.1 who also issued invoice No.4263598889 to her but there was no improvement in the mobile phone as neither touch of the phone was working properly, nor other defects were removed by the opposite party no.2. Thereafter, she again approached the opposite party no.1 who again asked to approach the opposite party no.2. The opposite party no.2 again tried his best, but of no use. Hence this complaint.

 3.          Notice of the complaint was issued to the opposite parties. Opposite party no.1 appeared through its counsel and filed its written reply taking the preliminary objections that the complaint is not maintainable against the opposite parties and the present complaint is bad for misjoinder of parties.  The opposite party has unnecessarily being impleaded as party to the present complaint. The complainant till date has never approached opposite party with any kind of problem in her handset. The claim of the complainant if any regarding her handset is to be paid by opposite party no.2 i.e. Service Centre. The opposite party has no role to repair or exchange the mobile in question. No cause of action had ever accrued to the complainant against the opposite party to file the present complaint. Thus present complaint on merits dismissal qua opposite party being bad for misjoinder of party. On merits, all averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed.

4.       Opposite party no.3 appeared through its counsel and filed its written reply taking the preliminary objections that the present complaint is bad for mis-joinder of parties. The opposite party has unecessaily been impleaded as party to the present complaint. No cause of action arose to complainant to file the present complaint against the opposite party. Till date handset has been submitted with opposite party no.2 only on 29.06.2018 with a broken display. The physical damage is a warranty void condition and repair is done on chargeable basis.; the complainant is not entitled for any relief from this Hon'ble Commission as she has concealed the true and material facts; the present complaint is liable to be dismissed under section 26 of the Consumer Protection Act and the complainant has sought replacement of mobile or refund of price, which is not permissible under the law and also under permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. On merits, it was admitted that opposite party no.2 gave repair estimate to complainant of Rs.5119/- on approval of repair estimate by complainant opposite party no.2 repaired the mobile handset and returned the warranty card supplied with the product at the time of sale.  No such assurance to replace the mobile after repair and rectification to complainant on 05.07.2018 is OK condition. The complainant herself has been negligent in using her handset. The opposite party is only liable to repair the product in question as per warranty terms and conditions. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed.

5.     Alongwith the complaint, complainant has filed her own affidavit  alongwith other documents Ex.C-1 and Ex.C-2.

6.      Written reply alongwith affidavit of Sh.Anup Kumar  Mathur, Director, Samsun India Electronics Pvt.Ltd. and other documents Annexure R-1 and R-2 filed on behalf of opposite parties.

7.    Rejoinder filed on behalf of complainant.

8.    We have carefully gone through the pleadings of counsels for the parties; oral arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.

9.      As enumerated above, as per copy of bill at Ex.C-1 the complainant purchased a mobile set on 22.12.2017 by paying Rs.16,000/- from opposite party no.1 which is manufactured by opposite party no.3. It is further alleged that it was not working properly and got it repaired from opposite party no.2 being Customer Care Centre of company by paying Rs.5119/-, as per copy of text invoice at Ex.C-2, which is undated. It is further alleged that again there was a defect in the mobile set and claim that it was a manufacturing defect. Complainant prayed for replacement of mobile set or refund of full cost of it, but no evidence proving the manufacturing defect has been placed on record.

10.      Opposite party no.1 in its written statement stated that this matter is between complainant and opposite party no.2, opposite party no.3 being the Customer Care Centre and manufacturer of the product.

11.    Opposite party no.3 in its written reply stated that the purchase of mobile set on 22.12.2017 and receipt of payment Rs.5119/- against repair of the mobile or the admitted facts of the case. Further it was pleaded that as per Ex.R-1, the acknowledgment of service request, the said mobile was received on 29.6.2018 with display broken condition. It is also mentioned by opposite party no.3 that due to broken display it was not covered under warranty being warranty void condition. Opposite party no.3 also quoted the references of terms and warranty placed at Ex.R-2 wherein it is mentioned under warranty condition Clause 13,18 and out of warranty condition that

                   (a) warranty covers only the defects in the product raising out of                    manufacturer or faulty workmanship.

                   (b) If the defect is due to misuse or water logging and defects caused                      by customer negligence. It is considered to be out of warranty.

12.     It is pointed out that the replacement of product or refund of price as claimed by complainant cannot be granted unless the complainant proves the manufacturer defect with cogent and adequate evidences supported by opinion/report of technical expert. Opposite party no.3 has also quoted references of various judgments in this regard.

13.    From the above details  and facts of the case we do agree to the points highlighted by the opposite party no.3 that onus lies on the part of the complainant to prove the manufacturing defect with adequate evidences and opinion/report of technical expert etc., but the complainant failed to prove her case by leading any such evidences.

14.     Further regarding charging of Rs.5119/- for repair it is clear that the defect of broken display was due to mishandling of the set by the complainant herself and as per terms and warranty which are binding on both the parties this defect was not covered under the warranty.

15.     In view of aforesaid discussion, considering the facts and circumstances of the case, we find no merit in the present complaint. Hence the present complaint of the complainant is hereby dismissed with no order as to costs.

16.           The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

17 .   Copy of the order be communicated to the parties free of charges. File be consigned to record room.                                                                                                                                                         

                (Kiranjit Kaur Arora)

                                                                                   President   

Announced:                                                   (Bhagwan Singh Matharu)

March 16, 2023                                                    Member

*MK*