Punjab

Faridkot

CC/17/43

TINKU ANEJA - Complainant(s)

Versus

MANAGER, Samsung India Electronics Pvt. Ltd - Opp.Party(s)

RAJNISH GARG

15 Jun 2017

ORDER

DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :         43

Date of Institution :   13.02.2017

Date of Decision :     15.06.2017

 

Tinku Aneja aged 27 years, s/o Prem Kumar Aneja s/o Ram Krishan Aneja r/o Mohalla Khokhran, Nim Wali Gali, Faridkot.

   .....Complainant

Versus

1.  Samsung India Electronics Pvt Ltd, A 25, Ground Floor, Front Mohan Co-operative, Industrial Estate, New Delh through its Manager/ Authorized Signatory/ Incharge.
2. Habba Telecare, Samsung Care Centre, SCO No. 9, Opposite City Kotwali, Near Bhai Kanhaiya Chowk, Faridkot through its Proprietor/Partner/Authorized Signatory.
3. Krishna Communications, Opposite City Kotwali, Near Bhai Kanhaiya Chowk, Faridkot through its Proprietor/Partner/Authorized Signatory.

......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President.

Sh P Singla, Member.

 

Present:       Sh Rajneesh Garg, Ld Counsel for complainant,

Sh Jatinder Bansal, Ld Counsel for OP-1 and 2.

OP-3 Exparte,

 

ORDER

(Ajit Aggarwal , President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the defective mobile hand set with new one or to refund its cost price of Rs.14,500/- and for also directing Ops to pay Rs.50,000/- as compensation for mental agony and harassment etc and litigation expenses of Rs.11,000/-.

2                                             Briefly stated, the case of the complainant is that complainant purchased a mobile phone of Samsung model J-5 Prime  IMEI No. 3525110822118264 from OP-3 vide bill dated 1.11.2016 on cash payment of Rs.14,500/-. OP-1 also gave guarantee of one year against any risk to phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang and started switching down without any command and stopped working. Complainant reported this fact to Op-2 and many times handed the mobile phone to him for repair but he used to return the same to complainant with false assurance that same problem would not occur again. Complainant deposited the mobile in question to Op-2 for three times within warranty period, but despite repeated repairs, it did not work properly. Complainant also deposited the said mobile with service centre, but on receiving back the same, he observed that all data was erased. Ld counsel for complainant contended that mobile in question is under guarantee and warrantee and OPs are bound to repair or replace the same. Complainant made many requests to OPs regarding mobile in question but OPs did not do the needful and all his efforts to get it repaired or replaced bore no fruit and complainant has suffered great harassment and mental tension due to this act of OPs, which amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for seeking direction to Ops to pay compensation and litigation expenses besides the main relief. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.02.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

 4                                                On receipt of the notice, OP-1 and 2 filed reply taking preliminary objection that complaint filed by complainant is false, frivolous and is gross abuse of process of law. It is submitted that till date complainant has submitted his mobile phone with them for only once on 1.12.2016 with problem of hanging, which was a minor problem relating to software of handset and on complaint by complainant, software of mobile was duly upgraded and complainant took delivery of his mobile phone after thoroughly checking the same and only after being fully satisfied with the functioning and thereafter, he never submitted his mobile with answering Ops. It is asserted that complainant has concealed the material facts and he has not come to the Forum with clean hands. Complainant purchased the said mobile on 1.11.2016 and same was given to them for repair on 1.12.2016 having minor issue of hanging. Defect in mobile was duly rectified by answering Ops without charging any consideration and there is no deficiency in service on their part. Complainant has levelled false allegations and therefore, present complaint is liable to be dismissed. Moreover, this Forum has no territorial jurisdiction to hear and try the present complaint. There is no inherent defect in mobile in question and moreover, the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and it might have been mishandled. It is averred that complainant has not brought on record any expert evidence to prove his allegations. There is no manufacturing defect in the mobile in question. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of technical expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. However, on merits, OP-1 and 2 have denied all the allegations levelled by complainant being wrong and incorrect, and reiterated that there is no deficiency in service on the part of OP-1 and 2. All the other allegations and allegation with regard to relief sought too are refuted being wrong and incorrect and prayed for dismissal of complaint.

5                                   Notice issued to OP-3 through Process Server stands served, but on date fixed, no body appeared on behalf of OP-3 to defend the allegations of complainant. Case was called out several times. Despite several calls, when no body made presence in the Forum on behalf of Op-3 either in person or through counsel, then, vide order dated 18.04.2017, OP-3 was proceeded against exparte.

6                                         Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and document Ex C-2 and then, closed the evidence.

7                                     The OP-1 tendered in evidence his affidavit Ex.OP-1/1 and closed the evidence. Ld Counsel for Op-2 and 3 tendered in evidence affidavit of Anindya Bose as Ex OP-1,2/1 and then, closed the evidence on behalf of OP-1 and 2.

8                                         We have heard the ld counsel for parties and have carefully gone through the evidence and documents placed on record by respective parties.

 9                                      The ld Counsel for complainant argued that complainant purchased a mobile phone of Samsung model J-5 Prime from OP-3 vide bill dated 1.11.2016 on cash payment of Rs.14,500/- having guarantee of one year against any defect in phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang and started switching off without any command and stopped working. Complainant reported this fact to Op-2 and many times deposited the mobile phone to him for repair but he used to return the same to complainant with false assurance that same problem would not occur again. Complainant deposited the mobile in question to Op-2 for three times within warranty period, but despite repeated repairs, but it did not work properly. Complainant also deposited the said mobile with service centre, but on receiving back the same, he observed that all data in mobile was erased. Ld counsel for complainant contended that mobile in question is under guarantee and warrantee and OPs are bound to repair or replace the same. Complainant made many requests to OPs repair or replace the mobile phone, but all in vain. Complainant has suffered great harassment due to this act of OPs, which amounts to deficiency in service. He has prayed for accepting the present complaint.

10                                 To controvert the allegations of complainant, ld counsel for OP-1 and 2 argued that present complaint is false, frivolous and is gross abuse of process of law. It is submitted that till date complainant has submitted his mobile phone with them for only once on 1.12.2016 with problem of hanging, which was a minor problem relating to software of handset and on complaint by complainant, software of mobile was duly upgraded and complainant took delivery of his mobile phone after thoroughly checking the same and only after being fully satisfied with the functioning of his mobile and thereafter, he never submitted his mobile with them. It is asserted that complainant has concealed the material facts and has not come to the Forum with clean hands. Complainant purchased the said mobile on 1.11.2016 and same was deposited with to them for repair on 1.12.2016 having minor issue of hanging. Defect in mobile was duly rectified by answering Ops without charging any consideration and there is no deficiency in service on their part. Complainant has levelled false allegations and therefore, present complaint is liable to be dismissed. Moreover, this Forum has no territorial jurisdiction to hear and try the present complaint. There is no inherent defect in mobile in question and moreover, the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and it might have been mishandled. It is averred that complainant has not brought on record any expert evidence to prove  his allegations. There is no manufacturing defect in the mobile in question. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of technical expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. It is further submitted that there is no deficiency in service on the part of their part and prayed for dismissal of complaint.

11                                     After careful observation of the record placed on file and evidence led by parties, it is observed that it is the admitted case of the parties that complainant purchased the mobile phone manufactured by OP-1 from OP-3, but it is totally refuted that there is any defect in the said mobile handset. Main contention of complainant is that though complainant handed over his mobile phone to Ops several times but despite repeated requests, Ops did not remove the defect and set it right. On the other hand, Ops have denied all the allegations of complainant but admitted before the Forum that complainant purchased the mobile in question from OP-3 on 1.11.2016 and it is also admitted by Ops that complainant handed over the said mobile to answering Ops for removing the  defect of hanging. OP-1 and 2 stressed mainly on point that complainant submitted his mobile to them only for one time on 1.12.2016 with  problem of hanging, which is a software related issue and on complaint by complainant software of his mobile was duly upgraded and after being fully satisfied with its functioning, complainant received his phone back and thereafter he did not make any complaint regarding its functioning. Ops have also asserted that hanging might be due to mishandling or it might be that complainant was using the non compatible mobile applications and games leading to alleged problem of hanging in said mobile handset, but complainant never approached authorized service centre of Ops after 1.12.2016 to get the same checked or repaired therefrom.

12                              Complainant has relied upon Ex C-2, which is copy of bill dt 1.11.2016, it clearly proves the fact that complainant is the consumer of Ops and Ex C-1 is the affidavit of complainant, wherein he has reiterated the pleadings taken in main complaint and prayed for Redressal of his  grievance. There is no doubt that complainant purchased the mobile in question from OP-3 and it is manufactured by OP-1 and Op-2 and this fact is also admitted by Ops.

13                                           From the above discussion and keeping in view the circumstances of the case, it is made out that there was one year warranty against any defect on mobile in question and within this period, OPs are liable to repair and remove all the defects from the phone. Now, the Ops can not escape from their liability to provide satisfactory services regarding mobile phone in question. Hence, complaint in hand is hereby accepted against OP-1 and 2 and is dismissed against OP-3, who is mere a shopkeeper and he has no role to play either in repair or replacement  of said mobile handset. OP-1 and OP-2 are directed to replace the mobile handset of complainant within one month of receipt of the copy of the order. OP-1 and 2 are further directed to pay Rs.4,000/-to complainant as consolidated compensation for harassment and litigation expenses. Compliance of the order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 15.06.2017                                

Member                     President

          (P Singla)                 (Ajit Aggarwal)