| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 108 of 01.07.2021 Decided on : 13-06-2023 Harwinder Singh, aged about 42 years S/o Bir Singh, R/o Talwandi Sabo, District Bathinda. ........Complainant Versus Friends Telecom, Guru Kashi Market, Near Dr. Ghai Hospital, Talwandi Sabo, District. Bathinda. Managing Director, Samsung India Electronics Pvt. Ltd., 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector 43, DLF PHV, Gurgaon 122202 (Haryana) Service Cenre, Balaji Telecom, Street No. 0B, Bibiwala Road, Bathinda.
.......Opposite parties Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Gaurav Gupta, Advocate. For opposite parties : OPs 1 & 3 exparte Sh. Kuljit Pal Sharma, Advocate, for OP No. 2. ORDER Lalit Mohan Dogra, President The complainant Harwinder Singh (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019, (here-in after referred to as 'Act') before this Commission against Friends Telecom and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the complainant purchased Samsung mobile model M-21 (6/128) having IMEI No.35500011242510 from opposite party No. 1, vide Invoice No. 782 dated 10-7-2020 against cash payment. It is alleged that at the time of selling the said mobile phone, opposite party No.1 assured the complainant that the quality of the above said product is of International level standard and it will meet the requirement of the complainant effectively and further assured that in case of any problem the company/distributor will replace the same without any delay or refund the whole amount of the said mobile. The complainant alleged that after purchasing the mobile, the complainant inserted the sim in it but the said mobile did not work properly and within one month from the date of purchase it became unfunctional. The complainant lodged a complaint with opposite party party No.l. Thereafter, the mobile of the complainant was got repaired by opposite party No.1 vide Job Card No.4306790599 dated 28/07/2020, but after some days, it became again unfunctional and then the opposite party No. 3 again got it repaired vide Job Card No.4312329626 dated 19-10-2020. But after some time, the function of the mobile again became hanged and the mobile was again got repaired by complainant vide Job Card No.4317626058 dated 08/01/2021. Even thereafter the mobile of complainant did not work properly then the opposite party No.3 advised the complainant to deliver the same to them and the same was delivered to opposite party 1 vide Job Card No. 4320 26553 dated 24-02-2021. On receipt of mobile from service centre (opposite party No. 3) of opposite party No. 2, the complainant shocked to know that the mobile of the complainant still unfunctional and does not work properly and creating problems due to which the purpose of purchasing of mobile did not serve. The complainant alleged that he spent most of his valuables time without availing the facility of mobile. He lodged many complaints with the opposite parties from time to time, but they did not bother and not replaced the mobile of complainant inspite of his repeated requests. The complainant also alleged that he suffered lot of harasment due to supply of sub standard product and thereafter due to poor service on the part of the opposite parties. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Rs. 50,000/- on account of price of mobile and loss in business in addition to 30,000/- as compensation for mental and physical harassment. Registered A.D. Notice of complaint was sent to the opposite parties but none appeared on behalf of opposite parties No. 1 & 3 and as such, exparte proceedings were taken against them. Upon notice, opposite party No. 2 put an appearance through counsel and contested the complaint There is breach of warranty terms and conditions as the handset has been found "Liquid Logged/Damage" due to which internal parts of the handset were damaged and handset was not working. Liquid Damage is warranty void condition, due to breach of warranty the repair is to be done on chargeable basis and complainant refused to pay for repair charges. As the handset was totally dead when it was submitted before opposite party No.3 on 22-02-2021 and job sheet was issued as out of warranty. It has been pleaded that the complainant has not come before the Commission with clean hands. The mobile handset in question has been regularly physically mishandled by the complainant. The complainant has purchased the handset in question on 10-07-2020 and he reported problem in the handset for the first time on 28-07-2020 within one month of purchase and usage of the handset. The problem reported by the complainant was 'display not working' . The opposite party No.3 on checking the handset internally found that handset has been badly damaged due to liquid ingress/liquid logging, which shows that handset in question has been negligently used. The opposite party No. 3 issued job sheet dated 28-07-2020 as out of warranty and told complainant that liquid logging is a warranty void condition. As the product was covered under Samsung Care+ it was duly repaired and rectified free of cost under Samsung Care+ by changing the required parts free of cost. It has also been pleaded that thereafter complainant submitted his handset with opposite party No.3 on 19-10-2020 and on inspection of handset by opposite party No. 3, no problem was found and handset in question was perfectly working hence, software was updated and handset was returned to complainant in OK condition. It has been further pleaded that complainant submitted his handset with opposite party No. 3 on 8-01-2021 and problem reported by complainant was 'auto power off' but on checking the handset by opposite party No.3 no such problem was found and handset in question was perfectly working and handset was returned back to complainant in OK condition. Then complainant again submitted his handset with opposite party No.2 on 22-02-2021 in a totally dead condition as handset in question was not switching 'ON'. The opposite party No. 3 on internal inspection of the handset found that internal parts have been damaged due to ingress of Liquid in the handset. As per warranty terms Liquid Logging is a warranty 'void condition, the repair of handset was not covered under warranty and repair was to be done on chargeable basis only. The estimate of repair was given to the complainant but complainant refused to pay repair charges. Thus liquid logged handset was returned to complainant by opposite party No.3 without repair. The aforesaid repair history shows that handset in question has been badly mishandled and negligently used by the complainant and there is no inherent defect in the handset as alleged by the complainant. The complainant has now filed the present complaint alleging totally false facts and concealed the true fact regarding the damaged liquid logged condition of his handset, caused due to his own negligence. The opposite party No. 2 has further pleaded that the handset in question has been submitted with opposite party No.3 lastly on 22-02-2021 with problem of 'Handset Dead' and on internal inspection of the handset by opposite party No.3, its internal parts were found damaged due to "Liquid Logging" due to which PBA Board & Sub PBA and display of the handset was damaged leading to 'handset becoming totally dead'. There is no inherent defect in the handset and rather it has been physically mishandled by the complainant leading to ingress of liquid. Due to physical mishandling and liquid damage caused to the handset it was not covered under warranty. Thus no cause of action arose to complainant to file the present complaint. Rather complainant is trying to take benefit of his own wrongs by filing the present complaint. The opposite party No. 2 has also pleaded that the obligation of opposite party No. 2 under warranty is subject to the warranty terms and conditions as mentioned in warranty card supplied with the product. The performance of the mobile phone depends upon the physical handling of the product. In the present case the mobile has been physically mishandled as the handset was found to be damaged due to liquid ingress when it was submitted before opposite party No. 2 on 22-2-2021, due to liquid logging, the hand set was not covered under warranty. Due to Liquid damge caused to the handset, repair of the handset was not covered under warranty and repair was to be done on chargeable basis. The estimate of repair was not approved by complainant, but complainant intentionally with ulterior motive has now filed present complaint alleging totally false facts. The liability of the opposite party No. 2 is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. No such assurance to replace the hand set is given by the opposite party under the terms of the warranty and the complainant cannot claim more than he has agreed. Further preliminary objections are that the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. The complainant has neither alleged any specific irrepairable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central Approved Laboratories in support of alleged submission as required under law. That the replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. Any defect developed after the lapse of warranty or defect due to liquid ingress/logging, the opposite party No. 2 is not responsible for the same. In the presnt case, the handset was found to be 'Liquid Damaged”. On merits, the opposite party No. 2 has controverted all the averments of the complainant and prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 5-07-2022 (Ex. C-1) and documents (Ex.C-2 to Ex.C-10). In order to rebut the evidence of complainant, the opposite party No. 2 has tendered into evidence affidavit of Sandeep Sahijwani dated 6.9.2021 (Ex. OP-2/1) and documents (Ex.OP-2/2 to Ex.OP-2/9). The learned counsel for the complainant has argued that from the very beginning mobile hand set purchased by complainant vide Ex. C-4 was having defects and was repaired from time to time vide job cards Ex. C-2 & Ex. C-3. However, defects in the mobile hand set could not be removed and on 8-1-2021, mobile hand set again hanged and opposite party No. 2 advised the complainant to deliver the mobile hand set to them against receipt on 24-2-2021 and ultimately opposite party No. 2 reported that mobile hand set is completely dead and started demanding Rs. 8196.28 as per estimate Ex. C-10 for repair of mobile hand set which amounts to deficiency in service and has prayed for replacement of mobile hand set and compensation. On the other hand, learned counsel for opposite party No. 2 argued that mobile hand set of the complainant was found with liquid logged/damaged due to which internal parts of the mobile hand set were damaged and mobile hand set was not working. Since mobile hand set was out of warranty, it can be repaired only subject to payment of cost/charges as mentioned in estimate Ex.C-10. We have heard leared counsel for the complainant and opposite party No. 2 and gone through the record. Admittedly mobile hand set was purchased by complainant on 10-7-2020 and as per warranty card produced by opposite party No. 2 Ex. OP-2/9, it was having warranty of 12 months. However, a perusal of Job Cards show that mobile hand set was having one or the other defect from the very beginning and was repaired on 28-7-2020 just after one month of purchase and thereafter on 19-10-2020, 28-1-2020 and 24-2-2021 meaning thereby that mobile hand set stopped working within 12 months of its purchase and was handed over to opposite party No. 2 and opposite party No. 2 demanded Rs. 8096.28 within warranty period for the repair of the mobile hand set with the execuse that defect does not fall within warranty condition i.e. liquid logged/damaged. The opposite party No. 2 has also produced photographs Ex. OP-2/3 to Ex. OP-2/5 to prove its version. However, this Commision is of the view that since the mobile hand set was within warranty period when it stopped working and opposite parties failed to prove by any report of engineer that defect in the mobile hand set was due to liquid logged/damaged, as such refusal to repair the mobile hand set within warranty by the opposite parties, amounts to deficiency in service on their part. Accordingly, this complaint is partly allowed against opposite parties No. 2 & 3 and they are directed to repair the mobile hand set of the complainant free of cost. The opposite parties No. 2 & 3 are also directed to pay Rs. 1,000/- as cost and compensation to complainant. The compliance of this order be made by the opposite parties No. 2 & 3 within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 13-06-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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