Orissa

Jajapur

CC/68/2018

Dilip Kumar Panda. - Complainant(s)

Versus

General Manager,Samsung India Electronics Pvt. Ltd. - Opp.Party(s)

Mahendra Kumar Jena,Laxmidhar Nayak,Tapan Kumar Sethi.

25 Sep 2019

ORDER

 IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:             1: Shri Jiban ballav Das,President

                                                                                  2. Shri Pitabas Mohanty, Member

                                                                                  3. Miss Smita  Ray, Lady Member                                                                    

                                             Dated the 25 th day of  September,2019.

                                                      C.C.Case No. 68  of 2018.

Dillip Kumar Panda     , S/O Braja kishore Panda      

Vill. Kalindrabad   ,P.O. Khairabad

P.S.Jajpur Sadar,Dt.Jajpur.

At Present: Nanipur,Panikoili,P.S.Panikoili

Dt.Jajpur .

                                                                                                                            ……....Complainant .                                                                   .                                    

                                                  (Versus)

1. Care Manager,Samsung India Electronics Pvt.Ltd, 6^th floor ,DLF Center,Sansad marg,New Delhi .

      2.   Samsung Services center,Krishna service center,At.Dala, P.O.Jajpur Road.Dt.Jajpur .

3. Maa Tarini Mobile point –cum-Maa communication,At.Durga market,Panikoili, Dt.Jajpur

 

                                                                                                                              ……………..Opp.Parties.                                                                                                                                              

For the Complainant:                         Sri M.K.Jena, L.D.Nayak, T.K.Sethi,Advocates.

For the Opp.Parties :  1  and 2           Sri S.K.Mohanty, S.K.Mohanty, J.Mohanty, P.Samartha,

                                                R.Dash,   Sri P.K.Daspattnaik, Advocates.

For the Opp.Parties No: 1                  None. (Exparte) 

                                                                                                     Date of order:    25 . 09. 2019.

MISS  SMITA  RAY , L A D Y  M E M B E R  .

The petitioner has filed the present dispute alleging deficiency in service against the O.Ps.

            The fact of the petitioner’s case  as per complaint petition shortly is  that   the petitioner purchased a Samsung mobile paying  consideration amount of Rs1650/- on 3.06.18 from O.P.no.3 . The said mobile provided  one year of warranty of any  manufacturing defects from the date of purchase from the side of the manufacturer/ company.  After using of some days  the said mobile set became defective ,it became automatic off display is not functioning .Thereafter the petitioner contacted the seller   and as per advice of O.P.no.3 the petitioner went to work shop of O.P.no.2 on 06.08.18 who is authorized service center of mobile set  and after waiting of  3 hours the O.P.no.2 told him    the set is beyond repairing and the defect is man maid  and it has been tampered  and out of warranty  . The O.P.no2  also told the petitioner he will provide only paid service and  received Rs.500/  from the petitioner  against  a receipt and received the hand set for repairing  and assured the petitioner to repair  the mobile set but O.P.no.2  neither intimated the petitioner  after  repairing the mobile set nor returned the mobile set till yet .Accordingly seeing the   attitude  of O.P.no.2 , the petitioner sent  a pleader’s  notice to  the O.P.no. 1 on dt.13.8.18  and other notice sent to O.P.no..2 which returned with the postal remark the address is not found but O.P.no.1 did not reply  to anything after receipt of pleader’s  notice.  Accordingly  finding no other alternative the petitioner knocked the door of this Fora to direct the O.Ps to replace the mobile set with a new one and  award compensation  amounting to Rs. 30,000/-  for mental  agony and harassment .

            Notice  though duly served on the O.Ps ,    the O.P.no.3 did not  file  the written version or  objection.     The O.P.no. 1 and  2 appeared a through their learned advocate and filed the written version  taking the stands  that there is no cause of action arising  against the o.p.1 and 2 .The Samsung India Electronics Pvt. Ltd  is a company registered under the companies Act, and not properly described  in the complaint, for which the complaint is not maintainable. That this being not a case of denial or rendering on receipt of valid complaint under limited and agreed terms of warranty, the complaint is not maintainable . That the alleged complaint is one governed by the  limited terms of contract of guarantee for which relief’s claimed beyond said terms is not maintainable. In aforesaid circumstances, this is not a case of deficiency in service.  The complainant in this case pleaded manufacturing defect in the Mobile set of Samsung make without support of any materials on record or report of experts. The complaint is not even based on any technical advice and further same does not fulfill the ingredients of Section-13 and 14 of the Act to claim relief’s against these O.Ps.

            The alleged defect in the mobile phone can not be determined without proper analysis or test of it. It is submitted that the alleged mobile phone was submitted before Krishna service, alleging LCD white, Auto Off. Complaint is registered vide job No.4266168160 dt. 06.08.2018 and on inspection it is detected that the mobile phone was tamper by outside vendors by breaking  seal and replacing genuine parts, for which the complaint was registered as an out of warranty complaint in terms of warranty  conditions and service offered on chargeable basis. Estimate for such service was stated to be Rs.959.86/-. On consent of complainant mobile was repaired by replacing the duplicate LCD and PBA with genuine spares, and after such replacement on observation it is confirmed to be performing perfectly . However, after repair of the product complaint denied to pay remaining charges as per estimate and demanded replacement of the mobile or refund its price. It is explained that warranty is not covered for physical damages and tampering of mobile by unauthorized persons. Copy of photographs taken at service center disclosing tampering of mobile by unauthorized person and job cards . In the aforesaid circumstances, as per observation and report of technicians of authorized service center, this is not an established case of manufacturing defect in mobile phone or an established case of deficiency in service.

            In such circumstances, the complainant may be directed to produce the mobile phone in dispute before this Hon’ble Forum and same may be sent to laboratory for proper analysis with regard to existence of alleged manufacturing defect within warranty period. The complainant may further be directed to deposit the fees as may be specified , for payment to the appropriate laboratory  U/S 13(d) of the Act.

            It is therefore, most respectfully submitted that the preliminary objection raised U/S 13(C) and (d) of the C.P.Act may kindly be decided first. That the complaint allegations are false and denied. The averments of the complaint which are specifically not admitted herein below shall be deemed to have been disputed and denied by these O.Ps.

            On the date of hearing the O.P.no.1 and 2 are absent.  We heard the argument from the side of the petitioner .After perusal of the record and documents in details

It is undisputed fact that the petitioner purchased the alleged mobile from O.P.no.3 with paying the consideration amount Rs.  1650/- and the mobile set  gone   one year of warranty from the date of purchase .

            It is also a fact that after some days of  using of mobile it became defective and  as per advice of O.P.no.3 the petitioner deposited the  mobile set  and  Rs. 500/-  for repairing of the set  but till date the O.P.no.2 neither repaired the mobile set nor returned the same to the petitioner .

On the other hand the petitioner send a pleader notice to O.p.no.1 as well as O.P.no.2 regarding his grievance but O.P.no.1 neither took  any step  regarding  the  grievance  of the petitioner ,  not  replied  anything to the petitioner which  is  deficiency of service as per observation of N.C  reported in 2013 (1) CPR-456- N.C  

Where in it is held that “ none reply of  legal notice may draw adverse inference”

In the  written version the  O.P.No .1 and 2 took  the stand that the alleged defect in the mobile phone can not be determined without proper analysis or test of it. It is submitted that the alleged mobile phone was submitted before Krishna service, alleging LCD white, Auto Off. Complaint is registered vide job No.4266168160 dt. 06.08.2018 and on inspection it is detected that the mobile phone was tampered  by outside vendors by breaking  seal and replacing genuine parts, for which the complaint was registered as an out of warranty complaint in terms of warranty  conditions and service offered on chargeable basis. Estimate for such service was stated to be Rs.959.86/-. On consent of complainant mobile was repaired by replacing the duplicate LCD and PBA with genuine spares, and after such replacement on observation it is confirmed to be performing perfectly . However, after repair of the product complaint denied to pay remaining charges as per estimate and demanded replacement of the mobile or refund its price. It is explained that warranty is not covered for physical damages and tampering of mobile by unauthorized  persons. Copy of photographs taken at service center disclosing tampering of mobile by unauthorized person and job cards . In the aforesaid circumstances, as per observation and report of technicians of authorized service center, this is not an established case of manufacturing defect in mobile phone or an established case of deficiency in service.

            As per observation above we are inclined to hold that there are partly deficiency of service from  the side of the O.P.no.1 and 2 because the O.P.no. 2 received Rs. 500/ for repairing the mobile set but the O.P.no.2 neither repaired the same nor intimated anything regarding the alleged mobile set of the petitioner. On the other hand the O.P.no.1 neither after receipt of the legal notice without taking any action as well as without replying the legal notice of the petitioner remained silent for which we are inclined to draw adverse inference against O. P.no.1

Hence this Order

The dispute is dismissed against  O.P.no.3 and allowed against O.P.no.1 and 2. The O.P.no .1 and 2 are  directed to provide a new mobile set of same features  or returned the  price of the mobile set to the petitioner within one month after receipt of this order ,failing which the petitioner can take step as per  law.

This order is pronounced in the open Forum on this the 25th  day of September,2019. under my hand and seal of the Forum.