Haryana

Kaithal

CC/238/2022

Neeraj - Complainant(s)

Versus

Friends Communication etc. - Opp.Party(s)

Sh. Karun Khatkar

24 Nov 2023

ORDER

             

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No. 238 of 2022.

                                                               Date of institution:   20.09.2022.

                                                               Date of decision:      24.11.2023.

 

Neeraj s/o Shri Ajmer Singh, r/o village Deoban, Tehsil and District Kaithal.

 

                                                                                      …Complainant.

                                                       Versus

 

1. Friends Communication, Shop No.55, Palika Bazaar, Kaithal, through its Proprietor (authorized dealer of Samsung Mobiles).
2. Unique Mobile Solutions, 1057/11, Marwa Complex, Kurukshetra Road, Kaithal, through its Proprietor.
3. Samsung Head Office 20^th +24 Floor, Two Horizon Center, Galf Course Rd. DLF Phase 5, Sector-43, Gurugram.

...Opposite Parties.

 

          Complaint under Section 35 of the Consumer Protection Act

 

CORAM:   SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SHRI SUNIL MOHAN TRIKHA, MEMBER.

                  

Present:       Shri Rajpal Khatkar, Advocate, for the complainant.   

                   Opposite Parties No.1 & 2 ex-parte.

                   Shri Vikram Tiwari, Advocate for the Opposite Party No.3.

                  

ORDER  -  NEELAM KASHYAP, PRESIDENT

        Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.

2.                In nutshell, the facts of present case are that the complainant purchased a mobile handset make Samsung ASO Model A52S IMEI No.311996302184985 for a sum of Rs.32,500/- vide invoice No.9830 dated 11.02.2022 from Op No.1 and he used the same as per instruction of the company. In the month of July 2022, the motherboard of said mobile phone stopped and on 21.07.2022, he approached OP No.2 in this regard, who kept the same for repair. He approached OP No.2 many times but it lingered on the matter on one pretext or the other and did not repair the said mobile phone. The OPs supplied defective mobile phone. The above act and conduct of OPs, amounts to gross deficiency in service, due to which, he suffered huge physical harassment, mental agony as well as financial loss, constraining him, to file the present complaint, against the OPs, before this Commission.

3.             Upon notice of complaint, OP No.3 appeared before this Commission and filed written statement, whereas, OPs No.1 & 2 failed to appear before this Commission on the date fixed i.e. 21.11.2022, despite receipt of notice, from this Commission, as such, they were proceeded against ex-parte, on that date, by this Commission.

4.                OP No.3, in its written statement stated that the unit has been duly checked by engineer of service center of OPs and same has been found damaged (i.e. OCTA CHROME OF THE MOBILE WAS FOUND DAMAGED/DENT) and as per warranty conditions, the unit is out of warranty and complainant is duly in knowledge and information regarding the same, but despite that, he made false story just to grab illegal benefits of his own wrong. It is well settled position of law that an expert opinion of an appropriate laboratory/agent evidence is mandatory under Section 38(2) (c) of the Consumer Protection Act, 2019 to prove the allegations/averments made by complainant in regard to any imperfection or defect and in the instant case. The mobile in question had been presented before the service center of the company for the first time and the last time on 21.07.2022 vide call No.4352025891 i.e. after a period of approximate more than 5 months from the date of purchase and still/hand on Samsung Logo problem in his unit. Hence, no deficiency in service can be attributed on the part of OPs and complaint in hand deserves to be dismissed on this score alone.

5.                To prove the case, complainant tendered into evidence affidavit Ex.CW1 alongwith documents Annexure C-1 to Annexure C-4.

6.                On the other hand, OP No.3 tendered into evidence affidavit Ex.RW1/A along with documents Annexure R-1 to Annexure R-5.

7.                We have heard the learned counsel for the parties and perused the record carefully.

8.                Learned counsel for the complainant has argued that the complainant purchased a mobile handset make Samsung ASO Model A52S for a sum of Rs.32,500/- vide invoice No.9830 dated 11.02.2022 from OP No.1. He further argued that in the month of July 2022, the motherboard of said mobile phone stopped and on 21.07.2022, the complainant approached OP No.2 in this regard, who kept the same for repair. The complainant approached OP No.2 many times, but it lingered on the matter on one pretext or the other and did not repair the said mobile phone. The OPs supplied defective mobile phone. The above act and conduct of OPs, amounts to gross deficiency in service

9.                On the other hand, ld. counsel for OP No.3 has argued that the unit has been duly checked by engineer of service center of OPs and same has been found damaged (i.e. OCTA CHROME OF THE MOBILE WAS FOUND DAMAGED/DENT) and as per warranty conditions, the unit is out of warranty and complainant is duly in. The mobile in question had been presented, before the service center of the company, for the first time and the last time on 21.07.2022 i.e. after a period of approximate more than 5 months from the date of purchase and still/hand on Samsung Logo problem in his unit. Hence, no deficiency in service can be attributed on the part of OPs.

10.               There is no dispute that the complainant had purchased the mobile in question, on 11.02.2022, from OP No.1 for a sum of Rs.32,500/-, vide Tax Invoice Annexure C-1.

11.              As per complainant, in the month of July 2022, the motherboard of said mobile phone stopped and on 21.07.2022, he approached OP No.2 in this regard, who issued job-sheet Annexure C-3. From perusal of said job-sheet dated 21.077.2022 (Annexure C-3), we found that in the column “Warranty Status”, there is mentioned “Full Warranty”. Moreover, in the column “Defect Description”, there is mentioned “STILL ON SUMSUNG”.

12.              Contrary to it, OP No.3, produced affidavit of one Ashwini Verma, owner of Samsung Service Center i.e. OP No.2 as Ex.RW2/A, on the case file, vide which, in Para No.2, he mentioned that on checking it was found that “the unit is DAMAGED (OCTA CHROME OF THE MOBILE WAS FOUND DAMAGED/DENT). The deponent told to complainant that the warranty of the unit has got barred due to DAMAGE/DENT. It was duly put to the knowledge of complainant that the mobile is out of warranty due to physical damage and as per the warranty policy, the repair of the unit shall be on chargeable basis but the complainant refused to pay the charges of repair”. However, the said Ashwini Verma, who tendered his affidavit Ex.RW2/A, on the case file, has been cross-examined by learned counsel for the complainant, wherein, firstly he said that “it is correct that this mobile not cover under the full warranty”, whereas, contrary to it, in the column of “Warranty Status” of job sheet dated 21.077.2022 (Annexure C-3), there is mentioned “Full Warranty”. In his cross-examination, said Ashwini Verma admitted that the mobile in question still under the possession of their service center. He further admitted that his qualification is B.A. and he is not done any diploma regarding the technical of the mobile phone and he has done the training from his company Samsung. However, it is pertinent to mention here that the mobile in question was checked by said Ashwini Verma and prepared the checking report, who admitted in his cross-examination that he passed only B.A. and does not possess any diploma, meaning thereby, the said Ashwini Verma was not having any technical qualification/knowledge regarding repair/service of mobile phones. The whole case of OP No.3 depends on the checking report of Ashwini Verma, but the same cannot be believed, being lacking on technicality ground. OP No.3 produced Acknowledgement of Service Request on the case file, but it is pertinent to mention here that OP No.3 failed to produce affidavit of said person, who had prepared the said report.

13.              So, keeping in view the above facts and circumstances of the case, we are of the considered view that the mobile phone of complainant became defective within warranty period, and OP No.3 refused to repair/rectify its defect, free of costs and demanded the repair charges, only on the basis of checking report, prepared by its owner Ashwini Verma, who has not any technical knowledge/qualification regarding the mobile phones. As such, by not resolving the grievance of the complainant regarding his mobile in question, OP No.3 is deficient in services. Since the mobile in question is still in the possession of OP No.3, therefore, the complainant is entitled for refund the cost of the mobile phone along with litigation expenses.

14.              In view of our above discussion, we accept the present complaint against OP No.3 and dismiss the same against OPs No.1 & 2, and direct OP No.3 to refund the cost price of the mobile in question amounting to Rs.32,500/-, to the complainant along with litigation expenses of Rs.5000/-, within 45 days from today. Hence, the present complaint is accepted accordingly.     

15.              In default of compliance of this order, proceedings shall be initiated under Section 72 of Consumer Protection Act, 2019, as non-compliance of Court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:24.11.2023.

                                                                                      (Neelam Kashyap)

                                                                                      President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

Typed by: Sham Lal, Stenographer.