Complainant Sukhwinder Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has sought issuance of necessary directions to the opposite parties to replace the Mobile Phone alongwith Rs.40,000/- towards mental as well as physical harassment to him alongwith litigation expenses of Rs.50,000/- to him, in the interest of justice.

2. The case of the complainant in brief is that he purchased a Mobile Samsung Glaxy At (6) from opposite party no.1 vide bill/Invoice No.6500 dated 14.03.2016 for Rs.33,500/- and one year warranty was given. As per the instruction of opposite party no.1, the mobile was also got insured with opposite party no.3 being expensive phone and amount of Rs.1800/- was paid for complete insurance of Mobile Phone. He was assured by the opposite party no.1 and official of Insurance Company that incase of any defect, the same will be covered and paid by them. Unfortunately, the Mobile stopped displaying anything on next day of purchase. He went to the opposite party no.1 and shown the mobile phone with request to got it alright. The opposite party no.1 called official of opposite party no.3 namely Gurdev who took him to opposite party no.2 for repair and bill was taken from him and asked him to wait for few days for its repair, but about 20-25 days, the phone was given back to him. He has next pleaded that again just after one day, the display of the Mobile Phone stopped which make him more shocked and worried. He went to opposite party no.1 and showed the Mobile phone as there was no display on it. The attitude of opposite party no.1 was totally different and non-cooperative. He was not ready to hear his problem. He requested him to call the official of opposite party no.3 for repair of mobile. The official of opposite party no.3 came to the shop of opposite party no.1 but he openly refused for any repair. He gave false excuse that insurance company got repair of Mobile Phone from Service Centre. Now they have no responsibility to get the same repaired. He made many requests then official of opposite party no.3 told that he would talk to his senior officers but of no result. He has further pleaded that the employees/Mechanics of opposite party no.2 were saying when mobile phone was shown to them that the opposite party no.1 used to change the internal parts of mobile phones to get more profit from the selling, the same with local parts and there are many complaints already coming to them. Even they told that the fault in the mobile phone falls within manufacturing defect and opposite party no.1 is bound to change the same with fresh piece. Similarly the opposite party no.3 has full connivance with them which have brought total harassment to innocent consumer and same is clear cut deficiency in service. Hence this complaint.

3. Upon notice, the opposite party no.1 appeared through its counsel and filed its written version submitting therein that the complainant purchased mobile phone from opposite party no.1. Opposite party no.1 has nothing to do with warranty service with the Mobile Phone. It was denied that as per instruction of opposite party no.1 the mobile was got insured with the opposite party no.3 being expensive phone. The opposite party no.1 has no role and nothing to do with the insurance services of the mobile phone. It is only opposite party no.3 which deals in providing the same. All other averments made in the complaint have been vehemently denied and prayed for dismissal of the complaint with costs.

4. Opposite parties no.2 & 4 appeared through their counsel and filed their joint written statement taking the certain preliminary objections that the present complaint is bad for misjoinder of parties. Complainant has never reported any problem in his alleged handset with opposite party or opposite party no.2 till date and has now filed the present complaint alleging totally false facts and concealed the true fact regarding the condition of his handset caused due to his own negligence. Thus present complaint is liable to be dismissed for concealment of true facts. The performance of the mobile phone depends upon the physical handling of the product and downloading of various mobile applications and software. The liability of the opposite party is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. The opposite party through this reply requested the Hon’ble Forum to direct the complainant to submit his handset with opposite party no.2 authorized service centre so that present exact condition of the handset can be brought to the knowledge of the Hon’ble Forum for proper adjudication of the matter in question. On merits, it was denied that complainant has purchased mobile Samsung Galaxy A6 from opposite party no.1 vide bill No.6500 dated 14.03.2016 for Rs.33,500/-. There is warranty of one year subject to warranty terms and conditions mentioned in warranty card supplied with the product. The mobile is not liable to be replaced under warranty. It was submitted that if mobile handset of any customer is retained by opposite party no.2 then job sheet is issued to the customer as receipt for the mobile retained by opposite party no.2 for repair. The complainant has never submitted his handset with opposite party no.2 till date. It was next submitted that the opposite party is only liable to repair the product in question as per warranty terms and conditions. The complainant has failed to prove on record that handset in question cannot be repaired, thus he is not entitled for replacement of mobile. All other averments made in the complaint have been vehemently denied and prayed for dismissal of the complaint.

5. Opposite parties no.3 appeared through its counsel and filed its written statement taking the preliminary objections that the complaint against the opposite party is not maintainable and is liable to be dismissed and the complainant has no cause of action to file complaint against the opposite party. On merits, it was submitted that the complainant has not supplied any copy of insurance policy and has not submitted any claim to the opposite party. No complaint was ever lodged with the opposite party by the complainant regarding any defect in mobile nor any document was supplied by the complainant or other opposite party for the settlement of claim if any which are mandatory. As per general terms and conditions of such type of policy complainant has to report to the concerned Dealer/Company regarding any defect in the mobile set if any within 24 hours and to supply documents within 7 days but the perusal of the complaint reveals that the complainant has failed to do so. The complaint is liable to be dismissed. It was denied that opposite party no.3 has any connivance with opposite party. The complainant has neither approached the opposite party nor submitted any complaint regarding any defect in the mobile set to the opposite party. The complainant has also not supplied the copy of insurance policy to the opposite party. There is no deficiency in service on the part of the opposite party. The complainant has filed false complaint against the opposite party which is liable to be dismissed.

6. Complainant tendered into evidence his own affidavit Ex.C1, alongwith other documents Ex.C2 to Ex.C4 and closed the evidence.

7. Sh.Rajesh Behal Prop. of Krishna Electronics and Communications opposite party no.1 tendered into evidence his own affidavit Ex.OP-1/1 and closed the evidence.

8. Counsel for the opposite party No.2 and 4 tendered into evidence affidavit of Sh.Anindya Bose, Deputy General Manager Samsung India Electronics Ex.OP-2,4/1 and closed the evidence.

9. Counsel for the opposite party no.3 tendered into evidence affidavit of Daulat Ram, Incharge Business Centre Oriental Insurance Company Ltd. Ex.OP-3/1 alongwith other documents Ex.OP-3/2 and Ex.OP-3/3 and closed the evidence.

10. We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking requisite judicial-notice of non-submission of some documents seemingly vital to the present adjudication. We find that the present dispute/complaint has arisen as a result of the alleged defective functioning of the expensive Samsung Make Mobile Handset purchased from the OP1 Vendor and repaired to set it right by the OP2 Samsung Service Centre at the active instance of the OP3 insurers. However, the recurrent defunct performance of the Mobile prompted the present compliant praying for the necessary relief by way of replacement and statutory cost/ compensation etc.

11. The OP 1 vendor has straightaway denied in general his role in repairs/ replacement/insurance of the Mobile Set and has specifically denied defunct-performance of the Mobile Handset in question for want of knowledge/ intimation. Further, the other opposite party OP3 insurers as well as the OP2/OP4 Manufacturers & Service Centre have denied the receipt of the Mobile Set for repairs and/or even any intimation of its dysfunction/getting defunct but have duly offered to examine/repair the same, if need be and brought to them for the purpose.

12. We further find that the complainant has not produced any job card and/or any other cogent evidence of the Mobile’s dysfunction/repairs at the OP2 Service Station and has even failed to produce the defunct mobile before us during the course of present proceedings for a purposeful examination by the OP2 expert. However, the present complainant has proved through the deposition(s) Ex.C1 & Ex.C4 and insurance Policy/Invoice Ex.C2 & Ex.C3, the Mobile’s purchase and insurance and somewhat his allegations of ‘dysfunction’ etc along with the ‘one year warranty’ of the sold product i.e., the mobile-set, in question.

13. We find further that the OP1 vendor vides its written reply (duly supported by the affidavit Ex.OP-1/1) has pleaded that ‘Insurance, Repairs, Replacement and Refund’ of the Samsung Make Products (sold at his shop) has been the responsibility/liability of the OP2/OP4 along with that of the OP3 and as such the present complaint deserves to be dismissed, at least, against him. Moreover, the complainant did not intimate him (the OP1 vendor) of the dysfunction/defunctness of the insured mobile. We are not prepared to accept this arbitrary plea of the OP1 and hold him jointly, severally and co-extensively responsible for an efficient and courteous after sales service etc along with the other opposite parties. We find that the complainant could not enjoy the full benefits of his Samsung Make expensive Mobile Set purchased from the OP1 (under insurance of the OP3) and in spite of the city-presence & city-representation of the OP2/ OP4 who of course have presently offered for a free examination of the same and a warranty-eligible free repairs etc.

14. In the light of all above, we are of the considered opinion that the present complaint can be best disposed of by directing the OP2/OP4 Service Centre/ Manufacturers to conduct a thorough examination of the Mobile Set in question followed by the free within-warranty repairs/part-replacement etc in case the complainant opts to deliver his mobile set at the place of business (as per his convenience) at any of the titled opposite parties within 15 working days of these orders and to deliver back the same to him in perfect working order within the next 10 working days along with a certificate of satisfactory working. The litigating parties shall however themselves bear their own costs, here.

15. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

(Naveen Puri)

President

Announced: (Jagdeep Kaur)

August, 09 2017 Member

*MK*