BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Pawan Kumar aged about 36 years son of Sh.Mahinder Kumar Resident of House No.J-51, Sector-20, GH-94, Panchkula(C/o SBI, Branch Sector-14, Panchkula)

                                                                ….Complainant

Versus

1.     Gupta Electronics & Electrical through its Proprietor/Partner/      Authorised Signatory, SCF No.219, Near Local Bus Stand,         Manimajra, Chandigarh.

2.     Mobile care through its Proprietor/Manager/Partner/ Authorized Signatory/Authorised representative SCO No.62, First Floor,    Swastik Vihar, Panchkula.

3.     The Samsung India Pvt. Ltd. through its Director/Managing         Director/Partner/Authorized Signatory/AuthorIzed representative        20^th to 24^th Floor, Two Horizon Centre, Golf Course Road, Sector-       43, DLF PH-V, Gurgaon-122202, Haryana.                                                                                                                                                                                                                                     ..….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Suman Singh, Member

For the Parties:   Complainant in person.

                        OPs No.1 & 2 ex-parte vide order dated 12.07.2022.

                        Ms. Jyoti Rani, Advocate for OP No.3.

                                        ORDER

(Satpal, President)

1.              The brief facts, as alleged in the present complaint, are, that the complainant had purchased a Samsung mobile set i.e. Model Galaxy A32 with 6 GB Ram + 128 GB storage, Black colour and IMEI No. 3530891848741 having warranty of one year from the Opposite party no.1(hereinafter referred to as OP No.1) for an amount of Rs.22,000/- including GST @ 18% vide invoice no.2446 dated 21.09.2021; the mobile set was purchased on 21.09.2021 but the bill of the same was issued on 10.10.2021, when the complainant had gone to the shop of OP No.1. It is submitted that the OP No.1 asked the complainant to take the insurance plan of the opposite party no.3(hereinafter referred to as OP No.3) for one year screen protection guarantee plan @ Rs.899/-. On the assurance of the OP No.1, the complainant had availed the said insurance plan i.e. Samsung Care + Screen Protection on 21.09.2021, which was valid from 21.09.2021 to 20.09.2022 for the above said mobile set. On 30.11.2021, the screen of the alleged mobile set had got damaged due to the accidental fall on the floor from the pocket of the complainant. It is stated that the complainant approached the Opposite party No.2(hereinafter referred to OP No.2)i.e. the authorized service centre of the OP No.3 seeking the repair of the screen of the alleged mobile set. The OP No.2 asked the complainant to deposit a sum of Rs.799/- as GST fees for getting registered the alleged mobile under warranty period, and accordingly, the complainant had deposited the same in unavoidable situation and forced circumstances and thereafter, the OP No.2 took alleged mobile set for its repair and for changing the damaged screen. The complainant requested the official of the OP No.2 to repair the alleged mobile within 2-3 hours but the official told the complainant to come after 2 days in evening at about 6:30 P.M. The complainant has no option except to agree with the official of the OP No.2. It is averred that the OP No.2 had not carried out the repairs of the mobile set and demanded a sum of Rs.11,000/- from the complainant on the ground that the motherboard and charging pin of the mobile set had got damaged. It is averred that the mobile set had not fallen down from much height and that the motherboard & its charging pin had got damaged due to the mishandling & negligence of OP No.2. On 22.12.2021, the complainant with the help of his colleague, namely, Sh.Vidyanand Kumar had sent a email to OP No.3 on its toll free number narrating the complete details of incident but to no avail. Due to the act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Notice was issued to the OP No.1 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.1; hence, it was deemed to be served and thus, due to non appearance of OP No.1, it was proceeded ex-parte by this Commission vide its order dated 12.07.2022.

                Notice issued to the OP No.2 through process server received was back as served but none has appeared on behalf of the OP No.2; thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide order dated 12.07.2022.

                Upon notice, the OP No.3 appeared through its counsel and filed the written statement by raising preliminary objections qua maintainability of the present complaint; no cause of action has accrued in favour of the complainant and against the OP No.3; the complainant has no locus standi to file the present complaint; the complainant is not a consumer as envisaged under the Consumer Protection Act; the complainant has not come with cleans hands as he has suppressed the material facts. It is submitted that the complainant had obtained the screen protection plan from the OPs and the same had a limited protection for cover of the damaged screen only and not for the other parts of the said mobile. It is submitted that the motherboard and charging pin had been found damaged, which were not covered under the screen protection plan policy. It is submitted that the complainant had approached the service centre of company of 30.11.2021 vide job-sheet no.4337565575 and reported Display Damage problem  in his unit  due to accidental damage of unit. The engineer of the service center duly received the unit and at initial stage, it was found that the screen of the unit was damaged. The engineer told the complainant that the unit was damaged due to mishandling on part of the complainant and the unit was out of warranty. As the unit of complainant was protected with the screen protection plan, the engineer told the complainant that the screen of the unit would be replaced under the said plan after the payment of processing fee. The complainant agreed and accordingly, the unit was got deposited for replacement of the screen. The authorized service center checked the mobile set thoroughly, wherein it was found that the mother board and the charging pin of the same were also damaged due to accidental damage. The engineer told the complainant that as per the screen protection plan policy, only the screen of the unit was covered under plan and for replacement of other damaged parts i.e. Mother Board and the charging pin, the complainant had to pay charges but the complainant became adamant for free of cost repair and thereafter, took his unit back without repair. It is submitted that warranty qua the unit becomes void in the following conditions:-

1. Liquid Logged/Water logging
2. Physically Damage
3. Serial no.Missing
4. Tampering
5. Mishandling/Burnt etc.

                It is submitted that replacement of the product or refund of the purchase price is expressly excluded under the warranty condition and thus, the complaint is liable to be dismissed.

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3; as such, the present complaint is liable to be dismissed.         

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.3 has tendered affidavits Annexure R-3/A & R-3/B along with documents Annexure R-3/1 to R-3/5 and closed the evidence.

4.             We have heard the learned counsels for the complainant as well as OP No.3 and gone through the entire record available on the file including the written arguments filed by the complainant as well as the OP No.3, carefully and minutely.

5.             During arguments, the complainant has reiterated the averments as made in the complaint as also in his affidavit Annexure C-A and contended that the mobile set in question was handed over to the authorized service centre i.e. OP No.2 of the manufacturer i.e. OP No.3 vide jobsheet No.4337565575 on 30.11.2021(Annexure C-3) qua the damages to the screen of the same and the same i.e. the mobile set was perfectly working at that time. It was argued that the damages to the screen of the mobile set were covered vide screen protection plan and as per job sheet Annexure C-3, the mobile was within warranty period. It was argued that no damages to the motherboard and charging pin of the mobile set were conveyed to him while, the set was deposited with the OP No.2. It was further argued that the damages to the motherboard as well as charging pin of the mobile set, if any,  had occurred due to  mishandling  and in efficient working of the OP No.2 and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.               The OP No.1 & 2 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 12.07.2022 and thus, the assertions made by the complainant against them go unrebutted and uncontroverted.

7.             The learned counsel on behalf of OP No.3, during arguments, reiterating the averments as made in the written statement as also in affidavits(Annexure R-3/A & R-3/B) contended that the damages to the motherboard and charging pin of the mobile set in question  were not covered  under the screen protection guarantee plan. It was argued that as per the screen protection plan Annexure C-2, the damages to the screen were covered and not to other parts of the mobile set in question. It was argued that the damages to the motherboard and charging pin of the mobile set were not covered within the warranty  period and thus, the demand raised for an amount of Rs. 11,000/- by the service centre i.e. OP No.2 for carrying out the repairs of motherboard and charging pin was valid and justified. The learned counsel argued that the warranty had become void in the following conditions:-

1. Liquid Logged/Water logging
2. Physically Damage
3. Serial no.Missing
4. Tampering
5. Mishandling/Burnt etc.

                Concluding the arguments, the learned counsel has prayed for dismissal of the present complaint being frivolous, baseless and meritless. Reliance has been placed on the following case laws:-

1. Sushil Automobiles Ltd. Vs. Dr. Birendra Narain & Ors.  Reported as 3(2010) CPJ 130(NC)-Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors.

2. Maruti Udyog Limited Vs. P.Rathnadurai, reported as 2004(II) CPJ 563(NC).
3. Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors. reported at II(2005) CPJ 102(NC).

8.             The aforesaid submissions made by the learned counsel for the OP No.3 denying its liability in the matter are not acceptable.

                First of all, it is pertinent to mention here that it is the specific and categorical assertions of the complainant in para no.5 of the complaint as well as corresponding para of his affidavit Annexure C-A that the mobile set in question, while it was deposited with OP No.2 (authorized service center) vide jobsheet (Annexure C-3/R-3/2) on 30.11.2021 was in perfect working condition. As per email(Annexure C-6) sent to OP No.3(manufacturer), again the same assertion was made that the mobile set, when deposited with the OP No.2, was in working condition. Pertinently, despite the specific and categorical contentions of the complainant that the mobile set, while it was deposited with OP No.2, was in proper working condition, the OP No.3 has not rebutted or controverted the said averments. Rather, the OP No.2 has preferred not to contest the present complaint by remaining absent during the proceedings of the case.

                Secondly, the OP No.3 has denied to carry out the repairs of the damaged motherboard and charging pin, if any, only on the report of its technical person/engineer, namely, Sh.Kuldeep Singh, whose affidavit is placed on record as Annexure R-3/B, but the averments made in the said affidavit(Annexure R-3/B) lacks credibility. As per said affidavit (Annexure R-3/B) Sh.Kuldeep Singh has stated that he had received the mobile set in question on 30.11.2021 vide job-sheet no. 4337562575 but the perusal of jobsheet i.e. Annexure C-3/R-3/2 shows that the mobile set was received by one Simran. Even in the job-sheet (Annexure C-3), the name of engineer is also not mentioned whereas in the jobsheet (Annexure R-3/2), which is placed on record by OP No.3, the name of engineer i.e. Sh.Kuldeep Singh is mentioned. Moreover, Sh.Kuldeep Singh vide his affidavit Annexure R-3/B has stated that the complainant was informed that the mobile set had gone out of warranty whereas the jobsheet(Annexure C-3 & Annexure R-3/2) shows that the mobile set was within full warranty; as such, the affidavit (Annexure R-3/B) of Sh. Kuldeep Singh, which is the sole defence of the OP No.3 suffers from several inherent contradictions and discrepancies and thus, no reliance can be placed on the same. In fact, the damages to the motherboard and charging pin, if any, had occurred due to the mishandling and in efficient working of the technical person of OP No.2. Had there been any such damage to the charging pin or the motherboard of the mobile set, then the mobile set would not have been functional.

9.             In view of the aforesaid discussion, it is crystal clear that the demand raised by the OP No.2 for payment of Rs.11,000/- for carrying out the repair of  the motherboard and charging pin of the mobile set was not valid and justified; thus, we have reached at the irresistible conclusion that the services rendered by the OPs No.2 & 3 to the complainant were not proper.

                The present complaint is dismissed qua OP No.1.

10.            In view of the discussion made above, the OPs No.2 & 3 are held deficient, for which, they are liable to compensate the complainant. 

11.            In relief, the complainant has claimed refund of amount of Rs.22,000/-i.e. the purchase price of the mobile set. Further, a compensation of Rs.50,000/- has been claimed on account of damages caused by OP No.2 to the mobile set. Further, a compensation of Rs.1,00,000/- and Rs.15,000/- has been claimed on account of mental agony, harassment and litigation charges.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.2 & 3:-

1. The OP No.3 is directed to refund  the amount of Rs. 22,000/- i.e. the purchase price of the mobile set in question to the complainant along with interest @ 9% per annum (simple interest) w.e.f. the date of filing of the present complaint till its actual realization.
2. The OP No.2 is directed to make the payment of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. The OP No.2 is further directed to make the payment of Rs.5,500/- to the complainant as litigation charges.

 13.           The OPs No.2 & 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.2 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:07.10.2024

        Dr. Suman Singh                   Dr.Sushma Garg                Satpal

                        Member                     Member                     President

Note: Each and every page of this order has been duly signed by me.

    Satpal

  President