Haryana

Kaithal

CC/293/2022

Sandeep Kumar - Complainant(s)

Versus

Lavish communication etc. - Opp.Party(s)

Sh. Vishal Dignai

31 Oct 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL Commission, KAITHAL.

 

Complaint No.        293/2022.

Date of instt.:        15.12.2022. 

                                                 Date of Decision:    31.10.2023   

 

1. Sandeep Kumar aged 38 years, S/o Sh. Rajinder Kumar, R/o Subhash Nagar,Khurana Road Kaithal, Tehsil & District Kaithal.

 

                                                        ……….Complainant.      

                                        Versus

 

1. Lavish Communication,G-15, Lala Lajpat Rai Shopping complex, Pehowa Chowk, Kaithal through its partner/proprietor.

 

2. Samsung India Electronics Pvt. Ltd. Registered Office at A-25, Ground Floor, Front Tower, Mohan Cooperative Industrial Estate, New Delhi-110044 through its general manager/Authorized officer.

..……..Opposite Parties.

 

COMPLAINT UNDER SEC. 35 OF CONSUMER PROTECTION ACT, 2019.

 

Before:           SMT. NEELAM KASHYAP, PRESIDENT.

                        SMT. SUMAN RANA, MEMBER.

                        SH. SUNIL MOHAN TRIKHA, MEMBER                      

Present :        Sh. Vishal Diglani, Advocate for complainant.

Sh. Vikram Tiwari, Advocate for the OP No. 2.

OP No. 1 already ex-parte.

                      

ORDER

 

(Neelam Kashyap, PRESIDENT).

 

                       The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019, with the averments that he purchased a mobile handset Samsung A33 (6-128GB) for sum of Rs.25,000/- from the OP No. 1  vide invoice No.795 dated 16.10.2022. The abovesaid mobile was purchased by the complainant guaranty/warranty of one year was given by the respondent No. 1. It is alleged that after lapse of about one month, the above-said mobile set was not working properly with the problems of catching the network, hang problem and internet problem. It is further alleged that on November 2022, the complainant got deposited the above-said mobile set with the OP No.1 but after repair of mobile set by OP No.1, the above-said defects were not removed by OP No.1. It is further alleged that again on 12.12.2022 the complainant visited the service center OP No. 2 and service center OP No. 2 issued job card to the complainant. But after repair of mobile set by the OP No.2, the said mobile set was not functioning properly. This way, the OPs are deficient in service.  Hence, this complaint is filed.

2.     Upon notice, the OP No. 1 did not appear.  OP No.1 was proceeded against ex parte vide order dated 09.02.2023 passed by this Commission.    

 3.    Upon notice, the opposite party No.2 appeared before this commission, whereas OP No. 1 did not appear and opt to proceed against ex-parte vide order dated 09.02.2023. OP No. 2 filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; jurisdiction; that the complainant has miserably failed to prove any manufacturing defect in the mobile-set; that the complainant in regards to his complaint approached the answering Ops with some problems in the unit and the engineer of the company thoroughly checked the unit and repaired the unit and unit was delivered to the complainant to his satisfaction.  It is also submitted that the OP are still ready to repair the unit as per company policy. There is no deficiency in service on the part of answering Ops.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

4.     In support of his case, the complainant tendered in evidence affidavit Ex.CW1/A and documents annexure C1 to annexure C2 and closed evidence on 07.08.2023.

5.     On the other hand, the OP No. 2 tendered in evidence affidavit Ex.RW1/A and documents annexure R1 to annexure R2 and closed evidence on 11.09.2023.   

6.     We have heard the learned counsel for complainant and perused the case file carefully and minutely.

7.     Ld. Counsel for the complainant has argued that the complainant purchased mobile set make  Samsung A33 (6-126GB) for sum of Rs.25,000/- from OP No. 1 vide invoice No. 795 dated 16.10.2022. The above-said mobile set purchased by the complainant under guaranty/warranty of one year was given by the respondent No. 1 regarding the working of the mobile phone, as per the terms and conditions as per policy of warranty/guaranty the respondent no. 1 agreed to replace and repair the said mobile free of costs in case of any defect in the same.   It is further argued that on after lapse of about one month, the above said mobile set was not working properly with the problems of catching the network, hand problem and internet problem.  It is further argued that on November 2022, he got deposited the above said mobile set with the OP No. 1 but after repair of mobile set by OP No. 1, the above said defects were not removed by OP No. 1. Thereafter, on 12.12.2022, he visited the service center OP No. 2 and service centre OP No. 2 issued job card as Ex. C2. After repair of mobile set by the OP No. 2, the said mobile set was not functioning properly. On 13.12.2022, he further requested to respondent No. 1 to replace the above said defective mobile with new one or refund the amount of Rs.25,000/- to the complainant but the opposite party No. 1 had flatly refused on his behalf as well as on behalf of OP No. 2. So, there is deficiency in service on the part of OPs.

8.     On the other hand, Sh. Vikram Tiwari, Adv. for the respondent No.2 has argued that the complainant has concealed the true and material facts and has presented the present complaint based upon no ground. No cause of action arises in favour of complainant and there is no manufacturing defect or any kind of defect in the unit. It is further argued that without any evidence or any expert report, the complainant has made false allegations. It is further argued that under the Consumer protection Act, it is mandatory to prove any allegation by way of cogent evidence or expert opinion. It is further argued that no as per the terms of warranty and services by the answering company, no replacement shall be provided in case where the product is repairable.

9.     We have considered the rival contentions of both the parties. It is clear from the pleadings of the complainant that the complainant purchased the mobile set in question on 06.10.2022 with the warranty of one year and the same became defective with the problem of catching the network, hang problem and internet within the warranty period but the grievances of complainant were not redressed by the Ops.  From the record, it is clear that the complainant has used the mobile set in question for the period of about 2 months and thereafter, the same became defective within warranty period.  Hence, the act of Ops by not replacing the mobile set with the new one or amounts to deficiency in service on their part.   

 10.           We have heard the learned Counsel for both the parties and perused the record carefully.

11.            Thus, as a sequel of above discussion, we allow the complaint partly against the Ops and direct the Ops to pay Rs.25,000/- the cost of the mobile set.  The complainant is directed to deposit the old mobile set alongwith accessories with the service-centre of Ops.  No order as to costs.  The Ops are jointly and severally liable.  Let the order be complied with within 30 days from the date of preparation of copy of this order, failing which, in default of compliance of this order, proceedings against respondents shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.    

 Announced in open court:

Dated:- 31.10.2023

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.