Punjab

Ludhiana

CC/14/620

Rashpal Singh - Complainant(s)

Versus

Imperial Ref. - Opp.Party(s)

Gurpreet Singh

16 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.                                   

                                                          C.C. No.620 of 08.09.2014

                                                          Date of Decision:16/02/2015

Rashpal Singh aged 3 5 years son of Harbhajan Singh resident of Kothi No.5, Urban Estate Dugri, Phase No.II, Ludhiana.

                                                                                      Complainant

                             Versus          

1.M/s Imperial Refrigeration, Plot No.32, Sec-3 Gru Gyan Vihar Opposite Jawaddi Taksal Gurudwara Sahib, Ludhiana-141013 through its Proprietor.

2.Sachin Gift Gallery, Shop No.12, 13, R.S.Model School Market, Model Town Extension, Ludhiana, through its Proprietor/Partner.

                                                                                                Opposite parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh. R.L. Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Ms.Babita, Member

Present:       Sh.Gurpreet Singh, Adv, for complainant.

                   Sh.Govind Puri, Adv. for OP1.

                   OP2 ex-parte.

                                                ORDER

R.L. AHUJA, PRESIDENT.

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by Sh.Rashpal Singh(hereinafter in short to be described as ‘Complainant’) against M/s Imperial Refrigeration, Plot No.32, Sec-3 Gru Gyan Vihar Opposite Jawaddi Taksal Gurudwara Sahib, Ludhiana, through its Proprietor and another (hereinafter in short to be described as ‘OPs’) directing them to pay the price of the mobile phone to the tune of Rs.9700/- alongwith Rs.10,000/- as damages suffered on account of loss in profession by the complainant and Rs.11,000/- as counsel fee and other benefits to the complainant.

2.                In brief, the case of complainant is that the complainant purchased Samsung mobile phone model GT-S7562UWAINS, description 7562 S Dous (Samsung) 35667059957034 vide invoice No.004638 dated 21.8.2013 from OP2 for a sum of Rs.9700/- including output Vat+ Surcharge. The warranty period of mobile was one year from the date of purchase i.e. w.e.f.21.8.2013. This mobile phone developed problem of display blank as it was not giving display on its screen while it was being used. The mobile was not working as per specifications and assurance of the OP2. The complainant approached OP1 and brought the matter to the notice of OP1 regarding the defect in the mobile i.e. Display Blank and Harwinder Kaur, employee of OP1 kept the mobile of the complainant and she filled form “Service Request”, copy of which, was handed over to the complainant on which, the complainant signed as customer and Harwinder Kaur signed on behalf of OP1 and she asked the complainant to come on next day for collecting the mobile set. Believing such representation to be true, the complainant came out of the service station of OP1 by handing over the mobile set to the employee of OP1 and the mobile set was well within the warranty period. At the time of purchase of the said mobile phone, the said dealer OP2 assured the complainant that in case, there is any defect in the mobile phone, the complainant should contact the OP1. On 21.8.2014, when the complainant went to collect the mobile set from OP1, he was informed that the warranty period of the mobile has already expired and the complainant has to pay the repair charges knowing fully well that the mobile set was handed over to the Ops. The Ops have failed to repair the mobile set of the complainant within the warranty period and the warranty period expired after the mobile was handed over to the Op1. The Ops have failed to remove the grievances/repair of the mobile of the complainant under warranty period, which he purchased from OP2, despite repeated approach with OP2, who told the complainant that he should approach OP1 for the removal of the defect of mobile/repair or to replace the same but on repeated calls to the office of OP1, the telephone attendant of OP1 always told the complainant that the “boss is busy please call lateron”. Such act and conduct of Ops is claimed to be deficiency in service on their part by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, Op1 was duly served and appeared through Sh.Govind Puri, Advocate and filed the written reply, whereas, despite service through notice, OP2 failed to appear and was proceeded against ex-parte vide order dated 07.10.2014 by this Forum. 

4.                OP1 filed the written reply, in which, it has been submitted in the preliminary objections that the complaint is gross abuse of the process of law and is liable to be dismissed under Section 26 of the Consumer Protection Act. The complainant has concealed the material facts from this Hon’ble Forum and no cause of action has arisen in favour of the complainant and against the answering OP1 to file the present complaint. The handset in question has been badly mishandled by the complainant. There is no deficiency in service or breach of contract on the part of the answering OP1. The answering OP1 or its service centre has never denied after sales services to the complainant and they are still ready to provide service to the complainant but now on chargeable basis as the handset is out of warranty being physically damaged. The handset was submitted with answering OP1 for the first time on 20.8.2014 i.e. after almost one year of purchase as the handset has been alleged to be purchased on 21.8.2013.  The display of the screen of the handset in question was broken, which is a physical damage and is not covered under the warranty and repair of display screen is on chargeable basis. The estimate of repair was given to the complainant but was not approved by him. This fact shows that there is no inherent defect in the handset. The obligation of the answering OP under warranty is to set right the air conditioner by repairing or replacing the defective parts only. The performance of the mobile phone depends upon the physical handling of the product, apart from installation and downloading of various mobile applications, games and other software. The problem of display as alleged in the complaint has occurred due to physical mishandling of the handset by the complainant as the display screen of the handset was broken when the handset was submitted for repair with answering OP1 and there was no other inherent defect in the handset and this fact was duly mentioned in the job sheet issued by answering OP1. Due to physical damage, the handset was not covered under warranty and repair was on chargeable basis. The handset was not repaired and lying with the answering OP1. The officials of answering OP1 has been calling upon the complainant to collect his handset but the complainant with ulterior motive has not taken back his handset.  No such assurance to replace the handset was given by the answering OP1 as alleged by the complainant. The complainant has not set out any legitimate ground entitling him for replacement of the mobile phone with damages and litigation cost. The 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. In absence of any expert evidence, the claim cannot be allowed. No cause of action has arisen in favour of the complainant and against the answering OP1 to file the present complaint. On merits, it is submitted that it is not denied that complainant had purchased the mobile in question from OP2 as alleged. However, it is not denied that there was warranty of one year from the date of purchase subject to terms and conditions mentioned in the warranty card enclosed with the product. Otherwise, similar pleas were taken as taken in the preliminary objections and at the end, denying all other allegations levelled by the complainant against the answering OP1 being wrong and incorrect, answering OP1 made prayer for dismissal of the complaint with costs.

5.                In order to prove the case of complainant, his learned counsel tendered in evidence affidavit of complainant Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has proved on record documents Ex.C1 & Ex.C2.

6.                On the other hand, learned counsel for OP1 tendered into evidence, affidavit of Mr.Sanjay, its Manager as Ex.RW-A, in which, he has reiterated all the contents of the written reply filed by the OP1 and rebutted the case of the complainant. Further, learned counsel for the OP1 has proved on record documents Ex.R1 to Ex.R3.

7.                We have heard the learned counsel for the complainant as well as learned counsel for the OP1 and have also gone through the documents on file very carefully.

8.                Admittedly, the complainant had purchased the mobile in question i.e.Samsung Phone, Model GT-S7562UWAINS, description 7562 S Dous vide invoice No.004638 dated 21.8.2013 from OP2 for an amount of Rs.9700/- which is evident from copy of retail invoice Ex.C1. It is proved fact on record that after the purchase of the mobile handset in question, the complainant has faced the problem in the same qua display blank while using the same and the same was not working properly and the complainant had approached the OP1 for repair of the same and handed over the mobile set in question for repair which fact is evident from document Ex.C2 copy of Service Request dated 20.8.2014 issued by Op1 to the complainant mentioning the defect description as “Display Blank” . As per the allegations of the complainant that OP1 failed to repair or replace the handset in question despite his repeated requests and various visits. Further, as per the allegation of the complainant that the mobile in question is under the warranty of having one year from the date of its purchase.

9.                Though, learned counsel for the OP1 has not denied the plea taken by the complainant. However, he has taken the plea that display screen of the mobile handset of the complainant was broken which is a physical damage and which is not covered under the warranty and repair of display screen is on chargeable basis. However, learned counsel for the OP1 has failed to adduce any cogent and convincing evidence and documents on record in order to prove his respective plea. Since, it is proved fact on record that mobile handset of the complainant is lying with the OP1 for repair which has not been carried out by the OP1 and it is a proved fact that the mobile in question is within the warranty period when the same was given to the OP1 for repair by the complainant which fact is evident from copy of document Ex.C1 and Op1 has failed to produce on record any document in order to rebut this plea of the complainant. So, the complainant is entitled for the repair of the mobile handset in question from the Op1 without any costs.

10.              Sequel to the above discussion, by allowing the complaint of the complainant, we hereby direct the OP1 to carry out the necessary repair in the mobile of the complainant which is covered under the warranty, by repairing/replacing the defective parts of the same and make the same proper functional to the entire satisfaction of the complainant without charging any costs. Further, Op1 is directed to pay compensation and litigation costs compositely assessed as Rs.2000/- to the complainant on account of mental pain, agony and harassment suffered by him. Order be complied within 30 days from the date of receipt of copy of this order. Copies of the order be sent to the parties free of cost and thereafter, file be consigned to the record room.

 

(Babita)                          (Sat Paul Garg)              (R.L. Ahuja)

 Member                                    Member                         President

Announced in Open Forum

on 16.02.2015

GurpreetSharma