Punjab

Moga

CC/17/22

Rajinder Pal - Complainant(s)

Versus

Gaba Communication - Opp.Party(s)

Sh. Balwinder Singh Gill

14 Jun 2017

ORDER

 THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 22 of 2017

                                                                                      Instituted on: 27.02.2017

                                                                                      Decided on: 14.06.2017

 

Rajinder Pal, aged about 47 years, son of Shri Brij Lal, resident of Bhoja Patti, VPO Gholia Khurd (Karyana shop) District Moga.

                                                                                ……… Complainant

 

Versus

1.       Gaba Communication, Channuwala Road, Bagha Purana, District Moga, through its Partner/Prop/Manager.

 

2.       Singla Communication, Ram Gunj, Chowk Akalsar Road, Moga (Service Centre).

 

3.       Samsung India Electronics Pvt. Ltd., 20^th to 24^th Floor, Two Horizon Centre, Golf Course, DLF-PH-V Gurgaon Haryana (Telephone no.0144881234).

 

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Balwinder Singh Gill, Advocate Cl. for complainant.

                   Opposite party no.1 ex-parte.

                   Sh. Vishal Jain, Advocate Cl. for opposite party nos.2 & 3.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Gaba Communication, Channuwala Road, Bagha Purana, District Moga, through its Partner/Prop/Manager and others (hereinafter referred to as the opposite parties) directing them to replace mobile set make Samsung Model no.SMG-J7-Prime, IMEI 352335085679649 colour black or to refund the amount of Rs.17,000/- i.e. the price of the abvoesaid mobile set. Further opposite parties may be directed to pay Rs.20,000/- on account of compensation, mental tension, harassment and deficient service to the complainant or any other relief which this Forum may deem fit and proper be granted.

2.                Briefly stated the facts of the case are that the complainant has purchased one mobile set of Samsung Company make Samsung Model no.SMG-J7-Prime, IMEI no.352335085679649 colour black vide bill no.2982 dated 26.12.2016 worth Rs.17,000/- from opposite party no.1. At the time of delivery, the opposite party no.1 has given assurance that the said mobile is of good quality and it will not given any problem/trouble. However, if there will be any defect, it will replace the same as opposite party no.3 has committed with them. Opposite party no.1 has given one year guarantee against any manufacturing defect whatsoever. However, the said mobile set was not working properly since the time of its purchase and it became headache for the complainant, as it suffered some problems i.e. there is very much heat and battery has become out of order. The said mobile used to heat, the battery remained 5/7% then the said mobile used to restart and remained restarted till the battery is not finished, when the said mobile restarted, no switch will function and mobile stopped, the battery was not working for full day, but after some time the said set used to recharge several time in day. After some time from the date of purchase, the said mobile was not working properly. The complainant went to opposite party no.1, who directed the complainant to lodge the complaint with opposite party no.2. Accordingly, the complainant visited the opposite party no.2 on 16.01.2017, 1.2.2017 and 8.2.2017, but to no effect. The opposite party no.2 instead of changing the set, repaired the same and assured the complainant they have repaired the mobile set and now, there will be no problem in future. However, despite repair, the mobile set was not working properly. The said mobile set used to hang over and become hot and did not respond and became totally dead. There is some manufacturing defect. The complainant approached the office of opposite parties several times and requested them to replace his mobile set. But the opposite parties did not pay any heed to the request of the complainant and refused to replace the same without any rhyme or reason. Due to the acts of opposite parties, the complainant has suffered mental tension, agony and harassment. Hence this complaint.

3.                Upon notice, opposite parties appeared through counsel and filed written reply taking certain preliminary objections that the present complaint is bad for mis-joinder of parties. The answering opposite parties has unnecessarily been impleaded as party to the present complaint. Admittedly there is no deficiency in service on the part of answering opposite party. The handset is perfectly working no alleged problem of Heating, battery empty is detected by opposite party no.2 when the handset was checked in safe mode on 16.01.17, 01.02.2017 & 08.02.2017 by opposite party no.2. It seems that complainant was mishandling the handset due to which such alleged problems are reported. However, as the product was under warranty its battery was duly replaced and it has been duly rectified by opposite party no.2 and handset delivered back to complainant in perfectly working condition to his satisfaction. But complainant for the reason best known to him and with ulterior motive has now filed the present complaint. Thus, no cause of action arose to complainant to file the present complaint against answering opposite parties and answering opposite parties have unnecessarily be impleaded as party to the present complaint; that the complainant is not entitled for any relief from this Forum as he has concealed the true and material facts; that the complainant has not come before this Forum with clean hands. The mobile handset in question has been physically mishandled by the complainant leading to the problem of Heating, Battery Empty of the handset. The handset was duly checked by opposite party no.2 in safe mode and no such problem of Heating and Battery Empty was detected. However, out of abundant caution the battery of the handset was duly replaced with new one without any charges. The complainant has now filed the present complaint alleging totally false facts and concealed the true facts regarding the condition of his handset, caused due to this own negligence; that the complainant has not sought the permission of this Forum under section 11 (2) (b) of Consumer Protection Act, 1986 before instituting the present complaint against the answering opposite party. Section 11 (2) (b) of Consumer Protection Act, 1986 clearly prohibits institution of any complaint before the District Forum if any of all of the opposite parties reside outside the territorial jurisdiction of District Forum unless and until permission is sought from the District Forum for the institution of complaint. Till date the complainant has not sought any permission for the institution of instant complaint within the territorial jurisdiction of this Forum, hence the further proceedings in the instant case is bad in the eye of law. All the opposite parties are working and having their office beyond the Territorial Jurisdiction of this Forum, hence as such institution of complaint of the complainant is not tenable in the eye of law; that the present complaint is liable to be dismissed u/s 26 of the Consumer Protection Act, as the present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations. Till date the complainant has submitted his handset for repair and rectification of problem on 16.01.17, 01.02.2017 & 08.02.17, but on all three occasions the handset was checked by opposite party no.2 in safe mode and no such problem of Heating and Battery Backup was detected by opposite party no.2. However, battery of handset was duly replaced without any charges and handset is perfectly working. Thus, there is no deficiency in service on the part of answering opposite parties. The obligation of the answering opposite party under warranty is to set right the mobile hand set by repairing or replacing the defective parts only. The performance of the mobile phone depends upon the physical handling of the product apart from compatibility of downloaded mobile applications and games. In the present case the mobile has been mishandled, leading to the problem of heating and battery backup. The liability of the answering opposite party 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 answering opposite party under the terms of the warranty and the complainant cannot claim more than he has agreed; 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 irreparable 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. In the absence of any expert evidence the claim cannot be allowed. The complainant claims the said mobile to be suffering from defects, therefore, it is the legal duty under the discharge of burden, upon the complainant to establish the same by Technical Expert Report, but no such report has been adduced by the complainant till date before this Forum, hence in the absence of any such Technical Expert Report, the complaint of the complainant cannot be decided as per the Provisions of C.P. Act, 1986; that the complainant has sought refund of price or replacement of mobile, which is not permissible under the Law and also under the terms of warranty; that the present complaint is gross misuse of process of law; that no cause of action has arisen in favour of the complainant and against the answering opposite party to file the present complaint. There is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or its service centre has never denied after sales services to the complainant. Rather the complainant has never approached any authorized service centre till date. The complainant has filed the present complaint with malafide intention to extract money from the answering opposite party by dragging in unwanted litigation. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex. C-1 alongwith copies of documents Ex.C-2 to Ex.C-8 and closed the evidence. 

5.                On the other hand, opposite parties tendered in evidence affidavit of Sh.Anindya Bose, Deputy General Manager, Samsung India Electronics Pvt. Ltd. Ex.OP-2, 3/1 and copy of warranty card Ex.OP-2, 3/2 and closed the evidence.

6.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

7.                The case of the complainant is that on 26.12.2016, he purchased a mobile Samsung mobile set from opposite party no.1. The opposite party no.1 gave one year warranty on the said mobile set. But from the date of its purchase the said mobile set was not working properly. There is a problem of heating and battery empty in the said mobile set. The complainant visited to the office of opposite party no.1, who directed the complainant to approach opposite party no.2 i.e. service centre of the company. Accordingly, the complainant visited the opposite party no.2, who instead of replacing the said mobile hand set got repaired the same and assured the complainant that there will be no problem in the mobile hand set in future. But despite repair, the mobile was not working properly. Thereafter, the complainant approached opposite parties many times and requested them to replace the mobile hand set in dispute, as there is some manufacturing defect in the same, but opposite partied did not pay any heed to the request of the complainant and refused to do so, which amounts to deficiency in service on their part. In reply opposite party nos.2 & 3 submitted that the handset is perfectly working no alleged problem of Heating, battery empty is detected by opposite party no.2 when the handset was checked in safe mode on 16.01.17, 01.02.2017 & 08.02.2017 by opposite party no.2. It seems that complainant was mishandling the handset due to which such alleged problems are reported. However, as the product was under warranty its battery was duly replaced and it has been duly rectified by opposite party no.2 and handset delivered back to complainant in perfectly working condition to his satisfaction. But complainant for the reason best known to him and with ulterior motive has now filed the present complaint. However, out of abundant caution the battery of the handset was duly replaced with new one without any charges. The complainant has submitted his handset for repair and rectification of problem on 16.01.17, 01.02.2017 & 08.02.17, but on all three occasions the handset was checked by opposite party no.2 in safe mode and no such problem of Heating and Battery Backup was detected by opposite party no.2. However, battery of handset was duly replaced without any charges and handset is perfectly working. Thus, there is no deficiency in service on the part of answering opposite parties.

8.                Now, it is admitted case of the parties that the complainant purchased the mobile set in question from opposite party no.1, which was manufactured by opposite party no.3 and the mobile hand set became defective after few days from the date of its purchase. On it, the complainant approached opposite parties for getting the mobile hand set repaired. But opposite parties did not do the needful, despite the fact that the hand set was within warranty period. Opposite party No.2, being the service centre and opposite party no.3 being manufacturer of the mobile hand set in dispute are under legal obligation to do the necessary repair of the mobile hand set in dispute within warranty period. The stand of opposite party no.2 is that there was no any problem i.e. Heating, battery empty detected by opposite party no.2 when the handset was checked in safe mode on 16.01.17, 01.02.2017 & 08.02.2017 by opposite party no.2. It seems that complainant was mishandling the handset due to which such alleged problems are reported. But from the perusal of job cards it appears the mobile of the complainant was suffering from some defects, which the opposite party no.2 i.e. service centre of the company is liable to repair. We are of the considered opinion that service centre of the company cannot deny to remove the defect in the product within warranty period and the customer is entitled to get his product repaired free of costs under warranty conditions.

9.                From the above discussion, the present complaint in hand is hereby allowed against opposite party nos.2 & 3 and they are directed to repair the mobile hand set in dispute to the satisfaction of the complainant under warranty conditions. The present complaint against opposite party no.1 stands dismissed, as he is only a retailer and the warranty is to be provided by manufacturing company. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 14.06.2017

 

                                                 (Bhupinder Kaur)                    (Ajit Aggarwal)

                                                             Member                                    President