BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, NUH (MEWAT).
Complaint No. 26 of 2016
Date of Instt:- 16/12/2016
Date of Decision:-30/05/2017
Sh. Pardeep Kumar son of Sh. Ram Kumar resident of SHKM Government Medical College Nalhar (Mewat)
......Complainant
Versus
- Irshad Mobile Showroom, Ward No. 6, Naib Wali Gali Newar Bus Stand Nuh District Mewat.
- Service Centre-F1 INFO Solution and Services Pvt. Ltd., Plot No. D-25, Info City Ph 2nd Gurgaon 122001.
- Sansung India Electronics Pvt. Ltd. Having its registered office A-25 Ground Floor, Front Tower Mohan Co-operative insustrial Estate New Delhi-110044.
. .....Opposite parties
Complaint under Section 12 of
Consumer Protection Act, 1986
Before:- Sh. Rajbir Singh Dahiya, President
Smt. Urmil Beniwal, Member
Smt. Keeran Bala, Member
Present:- Complainant in person.
Opposite party No. 1 and 2 already ex parte.
Sh. Anand Yadav, Adv. for the opposite party No. 3.
Order:- ( R.S. Dahiya, President)
Brief facts of the complaint are that the complainant purchased a mobile phone of Samsung Company Galaxy J2 with six month warranty and guarantee from the opposite party No. 1 for a sum of Rs. 7000/- vide bill No. 1652 dated 8.6.2016. It is alleged that the aforesaid mobile phone started to give the problems relating to heating and slow charging due to manufacturing defects after some time of purchase. So, the complainant approached the opposite party No. 2 Service Centre for rectifying the defects of the said mobile phone, but the defects of the mobile phone was not removed. It is further alleged that the aforesaid mobile phone is lying with the opposite party No. 2 for repair. Therefore, there is deficiency in service on the part of the opposite parties. Hence, it is prayed that the complaint may be accepted and the opposite parties be directed to replace the aforesaid mobile phone with new one or to refund the price thereof alongwith interest @ 12 % p.a. thereon, compensation of Rs. 20,000/- for mental harassment and Rs. 10,000/- as litigation charges.
2. Notices were issued to the opposite parties, but none was appeared on behalf of opposite party No. 1 and 2 despite elapsed of one month, so the opposite party No. 1 and 2 were proceeded against ex parte vide order dated 24.1.2017.
3. The opposite party No. 3 filed the reply agitating that the complaint is false and baseless and has been filed only to extract illegal money and unlawful benefits from the answering opposite party. It is alleged that the complainant has not come to this Hon’ble Forum with clean hands and concealed the true and materials facts. It has been contended by the counsel for the opposite party no. 3 that the complainant has not approached the answering opposite party and its authorized service centre for the defects of the said mobile phone, so the complainant is not entitled to any claim and there is no deficiency in service on the part of the answering opposite party. Dismissal of complaint with heavy costs is prayed for.
4. In evidence the complainant has produced his own affidavit Ex. CW1/A, copy of bill Ex. C1 and copy of job sheet Ex. C2 and closed the evidence. On the other hand, learned counsel for the opposite party no. 3 has produced the affidavit of Anindya Bose Ex. RW1/A and copy of warranty card Ex. R1 and closed the evidence.
5. During the arguments oral as well as written, opposite party No. 3 denied the purchase of disputed mobile phone for want of knowledge and subject to verification of purchase invoice Ex. C1. The opposite party No. 3 has not placed any document/report of verification of Ex. C1, so it cannot enter into their month to deny the existences and truthfulness of Ex. C1. As such we hold that the handset was purchased from the opposite party No. 1 who sold the same to the complainant.
6. Another objection taken by the opposite party No. 3 that the complainant did not approach the opposite party No. 2 which is service centre of opposite party No. 3. Opposite party No. 3 has not placed any evidence belying the genuineness and correctness of Ex. C2 (Job-Sheet) of the service centre of opposite party No. 3, who received the said handset and which is still lying with the opposite party No. 2. So, this objection of opposite party no. 3 is turnedown and it is held that the Ex. C2 is correct and genuine document.
7. The opposite party No. 3 ought to have brought the opposite party no. 1 and 2 forward to rebut Ex. C1 and Ex. C2 one being the retailer/dealer and another is part of functioning of opposite party No. 3. The opposite party No. 1 and 2 could have been in a better position to defend the complainant. But for reasons best known to opposite party No. 3, not to interact with the opposite party no. 1 and 2. Which are parts and parcel of functioning of the opposite party no. 3. As such the above-said objections are negatived.
8. The next objection is regarding the onus to prove of defect in the handset lies on the complainant for which the complainant should have obtained expert opinion. This objection is supported by two citations in the case of Tata Motors Vs. Rajesh Tyagi and HIM Motors Show Room II I(2014)CPJ 132 (NC) and Sukhvinder Singh versus Classic Automobile Shashtri Nagar Jharkhand 2012 NCJ 917 (NC). The facts of these citations do not come to the rescue of opposite party No. 3, due to the facts that opposite party no. 2 has already received the handset vide Ex. C2 dated 25.11.2016 and the same is still lying with the opposite party No. 2. By keeping the handset by opposite party No. 1 and 2 with them till date proves the factum of defects and averments of complainant in this regard that the opposite party no. 2 informed the complainant to the effect that the handset is having manufacturing defects and it could not be removed by the opposite party No. 2 stands explained. Another citation in Shiv Parsad Paper Industries Versus Senior Machinery Company 2006 (1) CLT 527 (NC) held that “ An equipment or machinery cannot be ordered to be replaced if can be repaired”. This objection of opposite party No. 3 cannot come to rescue because it is explained above that the handset of the complainant could not be repaired, as such of the above objections stands explained and are negatived.
9. Another objection by opposite party No. 3 is regarding guarantee and warranty. Nothing has been brought to our notice that the present complaint of defective handset is not covered by warranty and guarantee of the Company i.e. opposite party No. 3. On the contrary, the documents Ex. C1 and Ex. C2 proved that the defect of the handset purchased was brought to the notice of opposite party no. 1 and 2 immediately after some days of the purchase.
10. In view of the above observations, the complaint is allowed and the opposite party No. 3 is directed to pay Rs. 7000/- ( Seven thousand rupees only) as refund of defective handset alongwith interest at the rate of 9% per annum to the complainant from the date of filing of complaint i.e. 16.12.2016 till its realization. The opposite party No. 3 is also directed to pay Rs. 5000/- (Five thousand rupees only) towards compensation and litigation charges to the complainant within 30 days from the date of this order. File be consigned to the record room after due compliance.
Announced on 30/05/2017
President
Member Member District Consumer Disputes
Redressal Forum/Nuh (Mewat)
