Haryana

Ambala

CC/240/2021

Daljit Singh - Complainant(s)

Versus

Gulshan Mobile - Opp.Party(s)

In Person

10 Oct 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         :     240 of 2021

                                                          Date of Institution           :     13.08.2021

                                                          Date of decision    :     10.10.2022.

DALJIT SINGH son of Sh. Chuhad Singh, resident of Village Munda Majra, Post Office Bank Baknour, Tehsil Ambala City, District Ambala-Haryana, (aged about 68/69 years).                                                                                                                                                                                    ……. Complainant

VERSUS

 

1. Gulshan Mobile, Near Sai Baba Mandir, Jalbera Road, Ambala City-Haryana, through Its owner/Prop/Authorised signatory.
2. Service Centre (Samsung Mobiles), 374-A, Prem Nagar, Near Gurudwara, Ambala City-Haryana. (through Its Prop/ owner)
3. Head Office (Samsung Mobiles), 20th to 24th Floor, Two Horizon Centre, Gold Course Road, DLF 3. Phase-5, Sector-43, Gurugram, Haryana-122202.

 

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.

 

Present:        Complainant in person.

                     OPs No.1 & 2 already ex parte.     

                    Shri Rajiv Sachdeva, Advocate, counsel for the OP No.3.

                  

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To pay Rs.24,500/-, i.e the cost of the mobile to the complainant alongwith interest.

 (ii) To pay Rs.1,00,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.  

(iii)To pay Rs.20,000/- as litigation expenses.

(iv) Grant any other relief to which the complainant is found entitled to. 

2.             Brief facts of this case are that the complainant purchased a Mobile Phone Samsung F62 (Black) vide invoice No.6618 dated 23-07-2021 for a sum of Rs.24,500/-, which carried a warranty of one year from the date of purchase thereof. However, from the very first day of purchase of the said mobile phone, it did not work properly. The matter was reported by the complainant to OP No.1 on 03-08-2021. The mobile phone was returned on the same day with the assurance that it has been checked and will work properly. However, even thereafter also, the said mobile phone did not work properly. The matter was again reported to OP No.1 by the complainant on 08-08-2021. The complainant was asked to take the mobile handset to OP No.2-service centre. Thereafter, he received message from OP No.1 on 09-08-2021 that the Mobile Phone is repaired and ready for delivery and that the complainant can collect it from OP No.2. The complainant has not collected his Mobile Phone from OP No.2 as it was still not functioning.  Hence, the present complaint.
3.           Upon notice, none appeared on behalf of the OPs No.1 and 2, before this Commission, therefore, they were proceeded against ex-parte vide order dated 25.10.2021.
4.           Upon notice, the OP No.3 appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, not come with clean hands, locus standi and bad for mis-joinder and non-joinder etc. On merits, it has been stated that the complainant has failed to place on record any evidence to prove that the mobile phone in question suffers from any defect.  The complainant visited the OPs only on 03.08.2021 with the complaint–HANGING ISSUE in the mobile phone. The engineer of the OP No.2 received the mobile handset and a job sheet bearing no. 4329432455 was created. The mobile phone was checked and no defect was found therein. Only the software of mobile phone was updated and when the complainant was asked to collect his mobile phone, he failed to do so and on the other hand, demanded its replacement with a new one. The company provides one year warranty in case of any defect in the said mobile phone. Rest of the averments of the complainant were denied by the OP No.3 and prayed for dismissal of the present complaint.
5.           The complainant tendered his affidavit as Annexure CA alongwith documents as Annexure C-1 and C-2 and closed the evidence on his behalf. Learned counsel for the OP No.3 tendered affidavit of Shri Sandeep Shajwani, C/o Samsung India Electronic Pvt. Ltd., 20^th to 24^th Floor, Two Horizon Center, Golf Course Road, Sector-43, DLF Phase-V, Gurgaon as Annexure OP-3/A alongwith documents Annexure OP-3/1 to OP-3/2 and closed the evidence on behalf of OP No.3.
6.           We have heard the complainant and learned counsel for OP No.3 and carefully gone through the case file.
7.           The complainant submitted that by selling the defective mobile phone having manufacturing defects therein and on the other hand by neither rectifying the defects therein during warranty period nor replacing the same with a new one nor refunding the price thereof, the OPs are deficient in providing service and adopted unfair trade practice. 
8.           On the contrary, learned counsel for the OP No.3 submitted that since the complainant has failed to prove that the mobile in question suffers from any manufacturing defects and also at the same time only its software was required to be updated, which was updated by OP No.2 and the mobile handset was working properly, yet, the complainant failed to collect the same and on the other hand, demanded replacement thereof or in the alternative to refund the price of the same, without any reason.
9.           The moot question which falls for consideration is, as to whether, the complainant  is entitled to get refund of the price of the mobile in question or not?. It may be stated here that though the complainant in his complaint has alleged that he has approached the OPs number of times for defect rectification in the said mobile phone, but they failed to rectify the same, yet, he has not placed on record any documentary evidence in that regard. On the other hand, OP No.3 has placed on record job card dated 03.08.2021, Annexure OP -3/2 perusal whereof reveals that the mobile handset was landed with OP No.2 with the complaint “hanging issue”, as a result of which, its software was upgraded and it was made operational. Other than this document (Annexure OP -3/2) there is no other document, wherefrom the allegations levelled by the complainant to the effect that the mobile handset was taken to OP No.2 for repairs, number of times, except on 03.08.2021 and that too for its software updation, are proved. As such, in the absence of any evidence to prove that the mobile handset in question is suffering from any manufacturing defect or any other defect, which is beyond repairs or that he was required to take the same to the OPs a number of times for repairs but they failed to do so, the prayer made by the complainant seeking refund of the amount paid towards the said mobile phone cannot be considered.
10.           In this view of the matter, it is held that since the complainant has failed to prove his case to the effect that the mobile handset suffers from any manufacturing defect, as such, no relief can be granted to him in that regard. However, since it has been stated by the contesting parties that the mobile handset in question is still in the custody of OP No.2, as the complainant has not collected the same, as such, this complaint is dispose of, with the direction to the OPs to hand over the mobile handset in question to the complainant, in working condition, without charging anything, within a period of 7 days from the date of receipt of certified copy of this order.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced on: 10.10.2022.

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President