Complaint No: 385 of 2017.
Date of Institution: 27.07.2017.
Date of order: 12.09.2023.
Sukhbir Singh Son of Harbhajan Singh, resident of Village Attepur, Tehsil Batala and District Gurdaspur.
…..... Complainant.
VERSUS
- Goyal Light Emporium, Whole Sale Dealer, Mobile Set and Accessories, Loha Mandi, Batala, Tehsil Batala District Gurdaspur, through it Proprietor.
- Samsung India Electronics Pvt. Ltd. 20th Floor, Two Horizon
Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana -122202, through its Authorized Signatory. - Samsung Batala Service Centre, Ghuman Market, Qadian Road, near Qadian Chungi, Batala, Tehsil Batala District Gurdaspur, through its Authorized Signatory.
….Opposite parties.
Complaint Under Section 12 of the Consumer Protection Act.
Present: For the complainant: Sh.Anand Mahajan, Advocate.
For the opposite parties No.1: Sh.Deepak Sharma, Advocate.
For the opposite parties No.2 & 3: Sh.Varun Gosain, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Sukhbir Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Goyal Light Emporium Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant purchased a Brand New Mobile SAMSUNG bearing IMEI No. 354302081183552, for a sum of Rs.15,000/- on dated 05.02.2017 from the OP No. 1 for personal use as such the complainant is Consumer of opposite parties. It is alleged that the above said Mobile phone become out of order in the month of June, 2017 and Display of the Mobile Phone was not working, due to this reason, Mobile Phone become unused and complainant was unable to receive or do calls from the Mobile Phone in question. It is further alleged that thereafter the complainant approached to OP No. 1 and requested the OP No. 1 to repair the above said Mobile Phone or replace this Mobile Phone with new Mobile Phone, but OP No. 1 put the matter pending with one pretext or the other and thereafter OP No. 1 directed the complainant to approached to the OP No. 3 and accordingly the complainant approached to the OP No. 3 and they checked the same and told to the complainant that Motherboard and Display of the Mobile Phone have been damaged and there is necessity to replace the same and they demanded amount of Rs.12,000/- from the complainant and complainant said to the OP No. 2 that Mobile Phone of the complainant is within the warranty, but they refused to repair the Mobile Phone of the complainant. It is further alleged that thereafter the complainant again approached to the OP No. 1 and requested the OP No. 1 to replace the Mobile Phone of the complainant with new one or return the amount of Rs.15,000/- to the complainant along with interest from the date of due till its realization, but the OP No. 1 refused to admit the claim of the complainant and said to the complainant that there is a technical defect in the mobile Phone and same will be replaced by the OP No. 2. It is further alleged that act of the opposite parties having refused to repair the Mobile Phone of the complainant and also not replacing the same with new one and also refusing to return the amount of Rs.15,000/- of the complainant is illegal, null and void, unconstitutional, against the law, whereas according, to law, the opposite parties are bound to repair the Mobile Phone of the complainant and replace the same with new one and return the amount of Rs.15,000/- with interest. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the defective Mobile Phone in question with the new Mobile Phone set or repair the same or return the amount of Rs.15,000/- alongwith interest at the rate or 24 % from the date of due till its realization, may be passed in favor of the complainant against the opposite parties. The opposite parties may be further be directed to pay Rs.20,000/- to the complainant towards mental harassment and mental agony suffered and deficiency in service on the part of the opposite parties, in the interest or justice.
3. Earlier opposite party No.1 proceeded exparte vide order dated 15.12.2017, but later on Sh. Deepak Sharma had appeared on behalf of the opposite party No.1 by filing vakalatnama on 26.02.2018 and moved application to join the proceedings which was allowed and filed affidavit of Sh.Ashu Goyal Proprietor of opposite party No.1 as Ex.OP-1/1 on dated 18.04.2018.
4. Upon notice, the opposite parties No.2 and 3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that it is very apparent from the face of that the complaint has been filed with mischievous intentions thereby enabling the complainant to enrich him at the cost of answering OP’s by filing frivolous claim. The complaint of the complainant deserves dismissal on this ground alone. It is pleaded that there is breach of warranty terms and conditions as the handset has been found "Water Damaged" due to which LCD & PBA board of handset has damaged due to water ingress in the handset, due to water damage the handset was not covered under warranty and repair will be done on chargeable basis. It is pleaded that "Water damage/liquid logging" of mobile is a 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. It is pleaded that clause 5 of the job sheet reads as follows “The product has been accepted for service subject to internal verification and if product is found to be tampered, misused, components removed, cracked or liquid logged the same will not be considered under warranty and in such case customer will have to pay for the repair or the product will be returned without repairs”. It is pleaded that complainant is not entitled for any relief from the Hon'ble Commission as he has concealed the true and material facts. It is pleaded that complainant has not come before the Hon'ble Commission with clean hands. It is further pleaded that the complainant submitted the handset with OP No. 3 on 29.06.17 with problem of ‘Touch not work’ on internal inspection of handset it was found 'Water damaged / Liquid logged'. It is pleaded that estimate of repair was given to complainant but it was not approved by complainant as such handset/ Mobile Phone was not repaired and returned to the complainant. It is pleaded that the Complainant has not sought the permission of this Hon'ble Commission under section 11(2) (b) of Consumer Protection Act, 1986 before instituting the present complaint against the answering OP’s. It is pleaded that the present complaint is liable to be dismissed under section 26 of the Consumer Protection Act as the present complaint is gross abuse of the process of law and is totally false, frivolous and baseless. It is further pleaded that there was no inherent defect in the handset and rather it has been physically mishandled by the complainant and complainant is trying to take benefit of his own wrongs by filing the present complaint alleging totally false facts. It is pleaded that liability of the answering OP’s is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. It is further pleaded that the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. It is pleaded that 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 and "In the absence of any duly qualified independent expert evidence the claim cannot be allowed." It is further pleaded 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.” It is further pleaded that there is no deficiency of service or breach of contract on the part of answering OP’s. It is pleaded that answering OP’s or its service centre has never denied after sales services to the complainant and they are still ready to provide service to complainant as per warranty terms and conditions on chargeable basis and as such there is no question of any deficiency in service on the part of the answering opposite parties and the present complaint filed by the complainant is liable to be dismissed.
On merits, the opposite parties No.2 and 3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
5. Learned Counsel for the complainant has tendered into evidence affidavit of Sukhbir Singh, (Complainant) as Ex.C-1 alongwith other document as Ex.C-2.
6. Learned Counsel for the opposite parties No. 2 and 3 has tendered into evidence affidavit of Sh. Anindya Bose (Deputy General Manager, Samsung India Electronics Pvt. Ltd.) as Ex.OP-2,3/1 alongwith other document as Ex.OP-2,3/2.
7. Rejoinder not filed by the complainant.
8. Written arguments not filed by both the parties.
9. Counsel for the complainant has argued that mobile phone purchased by the complainant was not working properly and was shown to opposite party No.1 but opposite party No.1 demanded Rs.12,000/- from the complainant with the excuse that mother board and display of the mobile phone has been damaged which amounts to deficiency in service.
10. On the other counsel for the opposite parties have argued that hand set of the complainant was found to be water damage due to which LCD and PBA of the hand set was found to be damaged due to water ingress in the hand set and was not covered under the warranty and could have been repaired on chargeable basis. Complainant was apprised about the same but he refused and as such mobile phone was returned to the complainant. As such there is no deficiency in service on the part of the opposite parties.
11. We have heard the Ld. counsels for the parties and gone through the record. It is admitted fact that complainant had purchased one mobile hand set from opposite party No.1 retailer and manufactured by opposite party No.2 vide tax/retail invoice Ex.C2. It is further admitted fact that during the period of warranty the mobile phone stopped working. It is further admitted fact that repair was denied by the opposite parties and charges for repair were demanded. The only disputed question before this Commission is whether the demand of amount for repair by the opposite parties amount to deficiency in service or not.
12. To prove his case complainant has placed on record copy of bill Ex.C2 and his duly sworn affidavit. Whereas opposite parties No.2 and 3 has placed on record affidavit of Anindya Bose Ex.OP-2,3/1 and copy of warranty card Ex.OP-2,3/2. Inspite of the fact that it is admitted case of the parties that the mobile hand set purchased by the complainant is within warranty period and the repair was refused under warranty due to water logging.
13. Perusal of filed shows that opposite parties have not placed on record any report of their engineer to prove this fact that said mobile phone stopped functioning due to water logging. The only document placed on record is warranty car Ex.OP-2,3/2 and except this document opposite parties have not placed on record any document to prove their assertions.
14. During the course of arguments complainant appeared in person and has brought with him the said mobile phone which was inspected by us in the presence of counsels for the opposite parties. The said mobile phone is stated to have got burnt later on during the pendency of the complaint and as such has been rendered totally un-repairable. However, we are of the view that since the opposite parties failed to repair the mobile hand set within warranty period when the said mobile stopped functioning. As such complainant has definitely prove the deficiency in service on the part of opposite parties. Accordingly, since at present mobile phone is totally un-repairable condition having got burnt and the same can not be repaired.
15. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to refund 75% i.e. 75% price of the mobile hand set to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till its realization within 30 days from the date of receipt of copy of this order. No order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Sept. 12, 2023 Member.
*YP*
