Haryana

Kaithal

CC/115/2022

Shomdutt Sharma - Complainant(s)

Versus

Gaurav Communication - Opp.Party(s)

Sh.Ashok Gautam

04 Jan 2024

ORDER

               

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL

 

                                                               Complaint Case No.           115 of 2022.

                                                               Date of institution:             10.05.2022.

                                                               Date of decision:       04.01.2024.

 

Somdutt Sharma s/o Shri Dharam Pal Sharma, r/o Charanjeev Colony, behind Milan  Palace, Kaithal.

                                                                                      …Complainant.

                                                     Versus

 

1. Gourav Communication, through its Prop/Partner, Shop No.3, Padma City Mall, Kaithal.
2. M/s Samsung India Electronics Pvt. Ltd., through  its Manager/Director, A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi-110014.
3. M/s Samsung Service Centre, through its Prop/Partner, 1057/11, Marwa Complex, Kurukshetra Road, Kaithal.

...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 Rohit Kalyan, Advocate for the complainant.   

                   Shri Vikram Tiwari, Advocate for Opposite Party No.2.

                   Opposite Parties No.1 & 3 ex-parte.

                  

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.                It is alleged in the complaint by the complainant that he had purchased a Samsung mobile phone model Samsung A72 vide bill No.214 dated 23.08.2021 for a sum of Rs.34,999/- from OP No.1. The said phone was not working properly from the very first day having defect i.e. touch screen not working, some time auto restart and switched off  itself, processor of mobile is very low and he got it repaired from authorized service centre i.e. OP No.3 several times, but all in vain. The mobile phone has not been used by him in total for a month and same is lying unused either with OP No.3 and OP No.1. The employee of OP NO.3 told that there is manufacturing defect in the said mobile and many other customers are also facing the same problems. OP NO.3 had issued only job sheet i.e. acknowledgement on 05.03.2022. That the complainant is an advocate and had suffered a great loss in connectivity with clients due to noon availability of mobile phone. The above act of OPs of selling defective mobile phone to him, amounts to gross deficiency in service, on their part , 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.2 appeared before this Commission and filed its written statement, whereas, OPs No.1 & 3 failed to appear, before this Commission on the date fixed i.e. 25.01.2023, despite receipt of notices from this Commission, as such, they were proceeded against ex-parte, on that date, by this Commission.

4.                OP No.2, in its written statement admitted about selling the mobile phone in question to the complainant. It is further submitted that the complainant with regard to complaint of mobile phone approached to service centre of company for the first time and last time on 05.03.2022 vide job sheet No.4342799316 i.e. after using the mobile for a period of approximate seven months and reported Auto Restart & Touch not working problem in the unit. The engineer of service centre duly received the unit and checked the same without any charges, but no such defect was found in the mobile as it was found in total working condition. The engineer told to the complainant that mobile is having no defect and is working fine and just only to refresh the unit, software of the unit was updated and complainant took the delivery of his unit, after being fully satisfied. Rest of the contents of the complaint are denied and prayed for dismissal the present complaint against it with costs.

5.                To prove the case, complainant tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 & Annexure-C2.

6.                On the other hand, OP No.2 tendered into evidence affidavit Ex.RW1/A along with documents Annexure R-1 & Annexure R-2.

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 had purchased a Samsung mobile phone model Samsung A72 vide bill No.214 dated 23.08.2021 for a sum of Rs.34,999/- from OP No.1. He further argued that the said phone was not working properly from the very first day having defect i.e. touch screen not working, some time auto restart and switched off  itself, processor of mobile is very low and the complainant got it repaired from authorized service centre i.e. OP No.3 several times, but all in vain. He further argued that the mobile phone has not been used by the complainant in total for a month and same is lying unused either with OP No.3 and OP No.1. He further argued that the employee of OP No.3 told to the complainant that there is manufacturing defect in the said mobile and many other customers are also facing the same problems and OP No.3 had issued only job sheet i.e. acknowledgement on 05.03.2022. He further argued that that the complainant is an advocate and had suffered a great loss in connectivity with clients due to noon availability of mobile phone. The above act of OPs of selling defective mobile phone to him, amounts to gross deficiency in service, on their part.

9.                On the other hand, learned counsel for OP No.2 has argued that the complainant with regard to complaint of mobile phone approached to service centre of company for the first time and last time on 05.03.2022 vide job sheet No.4342799316 i.e. after using the mobile for a period of approximate seven months and reported Auto Restart & Touch not working problem in the unit. He further argued that the engineer of service centre duly received the unit and checked the same without any charges, but no such defect was found in the mobile as it was found in total working condition. He further argued that the engineer told to the complainant that mobile is having no defect and is working fine and just only to refresh the unit, software of the unit was updated and complainant  took the delivery of his unit, after being fully satisfied and prayed for dismissal the present complaint against it with costs.

10.              Undisputedly, on 23.08.2021, the complainant had purchased one Samsung mobile phone, from OP No.1, for a sum of Rs.34,999/-, vide Tax Invoice Annexure C-1.

11.              The learned counsel for the complainant has alleged that the mobile phone in question, purchased by the complainant, was not working properly, from the very first day having defects i.e. touch screen not working, some time auto restart and switched off itself, processor of mobile is very low and the complainant got it repaired from authorized service centre i.e. OP No.3 several times, but all in vain, as the there was manufacturing defect in the said mobile.

12.              Contrary to it, learned counsel for OP No.2 has contended that the complainant, with regard to complaint of mobile phone approached to service centre of company for the first time and last time on 05.03.2022 vide job sheet No.4342799316 i.e. after using the mobile for a period of approximate seven months and reported Auto Restart & Touch not working problem in the unit, upon which, its engineer duly checked the unit, but no such defect was found in the mobile as it was found in total working condition and just only to refresh the unit, software of the unit was updated and complainant took the delivery of his unit, after being fully satisfied. As such, there is no deficiency in service on the part of OPs.

13.              To support his above contentions, complainant produced copy of Acknowledge of Service Request dated 03.05.2022 as Annexure C-2 on the case file and from perusal of said document, we found that in the column of Warranty, there is tick mark on “Full Warranty”. Further in column “Defect Description”, it is mentioned “SOMETIME AUTO RESTART, SOMETIME TOUCH NOT WORK, HANG PRO ANAYTIME, SLOW PR”. OP No.2 also produced document Annexure R2/Mark-X on the case file, vide which, it is shown that complainant took the mobile phone after repair on 07.03.2022, but as per complainant, the OPs failed to rectify the defect of the mobile in question, despite repair. Moreover, the OPs failed to produce any documentary evidence on the case file, vide which, it can be gathered that they had redressed the grievance of the mobile phone. OP No.2 further not produced any affidavit or report of said expert/engineer who checked the mobile phone in question on the case file.

14.              So, keeping in view the above facts and circumstances of the case, we are of the considered view that mobile phone in question of complainant became defective and in this regard, OP No.2 failed to rectify the same, despite repeated requests, made by the complainant time and again, which amounts to gross deficiency in service, on the part of OP No.2, which certainly caused unprecedented physical and mental harassment to the complainant and forced him to indulge in the present unnecessary litigations.

15.              In the complaint in hand, complainant alleged that there is inherent/manufacturing defect in the mobile phone in question, so the cost price of mobile phone be refunded, from the OPs. But it is pertinent to mention here that the complainant had purchased the mobile phone in question on 23.08.2021 and he produced documentary evidence regarding his complaint, made to the OPs was of dated 05.03.2022 i.e. after more than 6 months, from the date of purchase of mobile phone on 23.08.2021, meaning thereby, the mobile phone in question had worked fine for more than 6 months, from its purchase. Meaning thereby, the mobile phone was not suffering from any manufacturing/inherent defect in it, as alleged by the complainant in his complaint, because, if it is so, then it was not possible to work the mobile phone fine for more than 6 months. So, keeping in view the above facts & circumstances, we are of the considered opinion that the interest of justice will be met, if the cost of mobile phone, be ordered to be refunded, to the complainant, after making 25% depreciation in it. The complainant purchased the mobile for a sum of Rs.34,999/-, vide invoice Annexure C-1, and after deducting 25% depreciation amount from it i.e. Rs.8749.75, the balance comes to Rs.26249.25 (34,999 -8749.75), as such, OP No.2 is liable to pay Rs.26249.25, to the complainant. Since there are no specific allegations have been leveled against OPs No.1 & 3, by the complainant, nor has it been proved, therefore, complaint, filed against OPs No.1 & 3, is liable to be dismissed.

16.              In view of our above discussion, we partly accept the present complaint against OP No.2 and dismiss the same against OPs No.1 & 3. We direct OP No.2 to pay Rs.26249.25, to the complainant, subject to return of old mobile phone in question with its accessories, by the complainant, with the service centre of OP No.2 i.e. OP No.3. We further direct to OP No.2 to make the compliance of this order, within a period of 45 days, from the date of preparation of certified copy of this order, failing which, the award amount shall carry interest @6% simple per annum, from the date of this order, till its actual realization.

17.              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.:04.01.2024.

                                                                                       (Neelam Kashyap)

                                                                                       President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.

 

 

Typed by: Sham Kalra, Stenographer.