BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.193 of 2016
Date of Instt. 29.04.2016
Date of Decision :20.12.2016
D.D. Ahir JP, Age 76 years, S/o Batna Ram, C/o Dr. B.R. Ambedkar Model Schook, Mehatpur Road, Nakodar, Distt. Jalandhar. Mobile No.8437535510
..........Complainant
Versus
H. R. Trading Co., First Floor, Wadhwa Tower, Sabzi Mandi, Nakodar, (Jalandhar), Through its Prop. /partner/Manager/Authorized Representative.
Samsung Service Centre, Near Canadian Bus Service, Bus Stand, Jalandhar, Through its Prop./ Partner/ Authorized Representative.
Samsung India Electronics Pvt. Ltd. SCO 35, Sec.31, HUDA Main Market Gurgoan, Delhi NCR-122001, Near Reliance Fresh Super Market. Through its Managing Director/ Authorized Representative.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: None for the complainant.
Sh. A.K. Verma, Adv. Counsel for opposite Party No.1.
Sh. Vishal Chaudhary, Adv. Counsel for opposite Parties No.2 & 3.
Order
Karnail Singh (President)
1. The present complaint filed by complainant, wherein alleged that he has purchased a Samsung Mobile Make: Samsung J1 ACE, IMEI No.353415073106661 from opposite party No.1 for Rs.6200/- vide Invoice No.R/2875 dated 23.09.2015. At the time of purchase one year warranty was given for above said mobile hand set. At the time of purchase of the said handset, it was told by opposite party No.1 that in case of any defect if arisen in the said mobile, the said handset would be repaired free of cost immediately or would be replaced if the repair is not done satisfactorily. Within a warranty period i.e. 26.04.2016 the above said handset failed to work. A shadow started to appear in the display of the said handset. The complainant told the opposite party No.1 for the above said defect. The opposite party No.1 advised the complainant to go to their authorized service centre i.e. for rectification of the defect. On 28.04.2016 the complainant went to opposite party No.2 and told the said defect. The opposite party No.2 opened the handset and checked it. After check up they told the complainant that the problem of shadow appearance in the display is due to breakage of display. The opposite party No.2 demanded Rs.4000/- from the complainant for replacement of display.
2. That the complainant requested the opposite party No.2 to replace the display free of cost because the said handset is under warranty and it has neither been fell down nor mishandled but the problem was due to manufacturing defect. The opposite party No.2 returned the handset by saying that they are unable to repair and replace the display free of cost. The complainant again went to opposite party No.1 who advised the complainant to contact the opposite party No.3. The complainant made telephonic call to opposite party No.3 but they ignored the call of the complainant. The complainant again requested the opposite party No.2, if the display cannot be replaced, replace the handset with new one being under warranty. But the opposite party No.2 refused to accept the genuine demand of complainant. The opposite party No.2 neither rectified the defect nor replaced the said mobile hand set with new one. The opposite parties have sold the defective and inferior quality product containing manufacturing defect which became out of order within warranty period. Non replacement and non repair of said product amounts to negligence and deficiency in service on the part of opposite parties and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and opposite parties be directed to replace the defective mobile hand set with new one with fresh warranty and in the event of non replacement to return its full cost Rs.6200/- with 12% interest from the date of purchase and further to pay the cost of litigation Rs.3300/- and to pay Rs.80,000/- as compensation for mental tension and harassment.
3. Notice of the complaint was given to the opposite parties and accordingly opposite party No.1 appeared through counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complainant is not entitled for any relief due to the concealment of material facts and circumstances from this Court. The handset in question had been mishandled as it was found to be physically damaged as the display LCD was found cracked therefore the complainant is not entitled for any warranty, because physical damage as in the present case, the LCD display has been found broken due to falling of handset from the complainant, therefore, it is absolutely fault of the complainant. Moreover, physical damage of any kind is not covered under the warranty, thus, the complainant is not entitled to any warranty. It is further submitted that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts and further submitted that the complaint is ex-facie misconceived, vexatious, untenable and devoid of any merit and has made this complaint in order to raise a premeditated, false and frivolous prosecution. It is further submitted that the complainant has failed to disclose all the facts before this Forum which if disclosed would have indicated that there is no cause of action in favour of the complainant against the answering opposite party. The facts narrated by the complainant have been represented in a misleading manner and further alleged that the complainant has no true grievance or valid cause of action qua the answering opposite party and further submitted that the complaint is frivolous and vexatious and is liable to be dismissed. On merits it is admitted that the complainant purchased the mobile but the remaining allegations made in the complaint are categorically denied.
4. Opposite parties No.2 and 3 appeared through their counsel and filed their separate written reply, whereby contested the complaint by taking preliminary objections that the handset of the complainant has been mishandled and it was found to be physically damaged as the display LCD was found cracked void condition. There is no inherent defect in the handset. Now complainant has filed the present complaint alleging totally false facts and is trying to take benefit of his own wrongs by concealing the true fact regarding the condition of handset and further there is no deficiency of service or breach of contract on the part of answering opposite party. It is further submitted that the complainant has neither alleged any specific irrepairable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and as the complaint of the complainant is liable to be dismissed. On merits it is admitted that the complainant purchased Samsung mobile model J-1 for Rs.6200/- but the remaining allegations made in the complaint are categorically denied and as such the complaint may be dismissed.
5. In order to prove his claim, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith documents Ex. C1 to Ex. C4 and then closed his evidence.
6. In order to rebut the evidence of the complainant, counsel for opposite party No.1 tendered into evidence affidavit of Jagjit Kumar Ex. OP1/A and closed the evidence on behalf of opposite party No. 1 and then counsel for the opposite parties No.2 and 3 also tendered into evidence affidavit of Anindya Bose Ex.OPA2 & 3/A alongwith document Ex.OP2&3/1 and closed the evidence on behalf of opposite parties No.2 and 3.
7. We have heard the learned counsel for the respective parties and also scanned the file very minutely.
8. From the perusal of the pleadings of both the parties and we find that the factum in regard to purchase of mobile Samsung make Samsung J1 ACE by the complainant from opposite party No.3 is admitted and it is also admitted fact that the warranty of the set was one year but as per the allegations of the complainant that the mobile set which was purchased on 23.09.2015 got some defect immediately after purchasing i.e. 26.04.2016 and it gave a shadow in the display and accordingly complainant approached the opposite parties No.1 and 2 for repairing the hand set or to replace it with new one but the opposite parties No.1 and 2 failed to satisfy the complainant and as such there is deficiency in service on the part of the opposite parties.
9. To the contrary, all the opposite parties categorically stated that the mobile set is no doubt within warranty period but warranty is given for natural defect occurred in the mobile but if any damage cause due to fall or broken and similarly happened in this case when the physically damaged to the display LCD which was found cracked and as such complainant is required to get repaired by making payment of the display but complainant did not agree with the same.
10. We have considered the rival contentions of both the parties and find that the complainant has made allegations that the defect occurred in the mobile set that a shadow started to appear in the display of the mobile set and complaint was lodged to opposite party No.2 who is service centre but who refused to repair the mobile set free of cost rather demanded Rs.4000/- from the complainant, admittedly the defect occurred in the mobile set within warranty period and we considered the plea taken by the opposite parties that there is physical damaged to the display that the said display had been broken due to fell of the mobile set which is not covered under the warranty. For that purpose it is required for the opposite parties to lead any cogent and convenience evidence by placing affidavit of any Expert i.e. Technical person who checked the mobile set when it was deposited with the customer care centre i.e. opposite party No.2 who issued the job sheet Ex.C2 wherein the defect described as “display damaged” but the opposite parties have not examined any Expert who can prove that the said damage to the display is due to the fall on the earth, opposite parties have examined only one witness Anindya Bose whose affidavit Ex.OPA2 & 3/A and the said witness is not a technical person. So, in the absence of any cogent evidence on the part of the opposite parties to prove that the display is damaged due to fall, then there is no alternative with us but to accept the version of the complainant that the said defect occurred due to inherent defect. So, it is proved that the mobile phone is having a major defect which is not repairable because if repairable then it must be repaired by the opposite party No.2. So, with these observations we find that the complainant is entitled for the relief.
11. In the light of the above discussion, the complaint of the complainant is partly accepted and opposite parties are directed to return the full price of the mobile set i.e. Rs.6200/- with interest @ 9% from the date of purchasing i.e. 23.09.2015 till realization and further OPs are directed to pay compensation of Rs.3000/- for mental tension and harassment and further directed to pay litigation expenses of Rs.1500/-. The entire compliance be made within one month from the date of receipt of order. Complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room
Dated Parminder Sharma Karnail Singh
20.12.2016 Member President
D.D. Ahir Vs. H. R. Trading Co. & Others.
Present: None for the complainant.
Sh. A.K. Verma, Adv. Counsel for opposite Party No.1.
Sh. Vishal Chaudhary, Adv. Counsel for opposite Parties No.2 & 3.
Remaining exparte arguments heard. Vide our separate detailed order of today, the present complaint has been partly accepted. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.
Dated Parminder Sharma Karnail Singh
20.12.2016 Member President
