Orissa

Rayagada

CC/148/2017

Ravi Kumar Patnaik - Complainant(s)

Versus

Manager,Samsung Electronices Ltd - Opp.Party(s)

Self

16 Aug 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 148/ 2017.                                        Date.   16    .8   . 2018.

P R E S E N T .                

Dr. Aswini  Kumar Mohapatra,                                      President

Sri GadadharaSahu,                                                          Member.

Smt.PadmalayaMishra,.                                                  Member

 

Sri Ravi Kumar patnaik, S/O: Apparao Patnaik, Kasturinagar, Ist. lane,  Dist: Rayagada, State:  Odisha.                                                                             …….Complainant

Vrs.

1.The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-oprative Industrial Estate, New Delhi- 110044.

2The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha).

3.The Manager, R.K.Cell point,  Po/ Dist: Rayagada (Odisha).

…  Opposite Parties

For the Complainant:- Self.

For the O.P No.1 &2 :-. Sri K. C. Mohapatra and associates, Bhubaneswar

For the O.Ps 3 :- Set exparte.

JUDGEMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of mobile  price  a sum  of Rs. 10,600/- which was found  defective   during warranty period.

On being noticed the O.P  No. 1 & 2 appeared through their learned counsel and filed joint  written version refuting allegation made against them.  The O.P No.1 & 2 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No. 1 & 2. Hence the O.P No.  1 & 2 prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P  No.3   neither entering in to appear before the forum nor filed their  written version inspite of more than  06 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.3.  Observing lapses of around 8 months  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  from the complainant set the case  exparte against the O.P. No.3. The action of the O.P No.3  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.3  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Heard arguments from the learned counsel for the    O.P  No. 1 & 2 and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set Model No. Samsung  J500F bearing IMEI No.359593/07/195489/6 and  359594/07/195489/4 from the O.P.  No.3  by paying a sum of Rs. 10,600/-  with Retail Invoice No. 724 dt.06.11.2016 with  one year warranty( Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately some  month  of its use  the above  set found defective and not functioning  i.e slow charging & software problem. The complainant complained to  the O.P No.2 (service centre)  for necessary repair in turn the O.P. made registration bearing No.4245809229 (Copies of the  same   is in the file which marked as Annexure-2).  Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.P. No.2 for replacement or refund of the price of the mobile set   in turn the OPs paid deaf ear.  Again the complainant had paid Rs.887/- on Dt.9.10.2017 to the O.P.No.2(Service centre) for extension of the warranty  another one year  upto 12.11.2018(copies of the same are in the file marked as Annexure-3 & Annexure-4).  The complainant also filed service centre checking report Dt.23.10.2017 marked as Annexure-5). The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence this case.

                On perusal of the record  it is revealed that  the fact of the  purchase  of Mobile set    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for one year.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   the complainant is entitled to thoroughly  check up  of the mobile set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 3   on payment of consideration  an amount of Rs. 10,600/- on Dt. 06.11.2016 (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after using  some months for rectification of defects handed over the same to the O.P. No.2 (service centre) for repair.

The  O.P. No. 1 & 2   in their written version  para-2 contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the mobile phone of the  complainant has defect or regarding the manufacturing  defect of his mobile phone or regarding the deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

The  O.P. No. 1 & 2   in their written version  para-5 contended that the complainant has neither mentioned categorically regarding the defect of his mobile phone nor presented any particular date/month when the defect persisted in his mobile phone. The complainant has not come before the forum  with clean hands and suppressed all real history of his alleged  set. It is submitted that, if the complainant has confirmed that the set has slow charging  and software problem then why the O.P. No.2  has advised him to observe the problem  of his mobile phone ? Further why he returned  home on advice of the O.P. No.2 if his mobile  phone has defect  as mentioned above?

The  O.P. No. 1 & 2   in their written version  para-6 contended that the complainant has never mentioned  on which day the alleged  mobile phone caused defect and only alleged in para-3 that “Using some days after purchase the complainant found some problem with his set, for which  he immediately complained to the O.P. No. 3 & 2 but they failed to provide  service for repair the set”. Further he stated that “The set has slow charging &  software problem. So he went to the O.P. No.2  they first orally advised  the complainant to observe  the problem of the set and he return home. When the complainant  went to the O.P. No.2 for the second  time, they kept  his mobile  for repair   and issued him the customer information  slip vide No. 4245809229(Annexure-2)”. Hence these statements are contradicted to each other and absolutely impossible. These statements were not digest on the part of the O.P. No.1  Because for Ist. Time  if the O.P. No.2 failed to  provide service then   how it was for 2^nd. time when the O.P.No.2 received his set for the service”. Again  if for Ist. time  the O.P. No.2 failed  to provide service  then how/why  the complainant went to  him further for   repair? Which is doubtful and unbelievable.  Further as per  statement  of the complainant, if the alleged set  started defective after some days of purchase, then how  many days required to observe the problem and after how many days  the O.P. No.2  has received said mobile set for repair and issued him slip vide  No. 4245809229?  Perhaps said job may made  within one (1) month or maximum within two(2) months  of  purchase but not more than above. If the job sheet No. 4245809229 was made on more than above months then  it will must be presumed  that the facts stated by complainant are all wrong, false, baseless, concocted, misconceived, frivolous and vexatious.   Hence the complainant has not come with  clean hands before this forum and suppressed all real history of his alleged  mobile phone and thus this complaint is liable to be dismissed on the ground also.

The  O.P. No. 1 & 2   in their written version  para-11 contended that in this present case the complainant has purchased  the alleged  set  from the O.P. No.3 on DT. 6.11.2016 with  one year  warranty    from the date of purchase  and after purchase  the complainant has  smoothly  used said till 22.9.2017, without any allegation   raised before the O.Ps.  All of sudden on 23.9.2017  the complainant has made service  request before the O.P. NO.2  for first time  for the defect  of slow charging &  set hang  issue immediately the O.P. No.2 received  the alleged set  from the complainant  through  online job  sheet vide No. 4245909229  and the service engineer  of O.P. NO.2 verified  the set and kept it in his observation and detected the  PBA of the mobile  phone was faulty  at the charge section only.   Then he replaced  the  Motherboard of the set and the  repair completed on 27.9.2017  and also replaced the battery in warranty on request of the complainant. Thereafter the complainant verified the set  and found the same in  ok condition  and received  the repaired  mobile with satisfied  on 28.9.2017 without any objection.  After this repair the complainant has used the  mobile phone smoothly  without any allegation  raised by him.   Thereafter on DT. 9.10-.2017  the complainant  has made  an Extended warranty   of his  mobile   phone on payment  of Rs.887/- for another one year.  Further for 2^nd. time on 23.10.2017.  The complainant has produced his  mobile  phone before the O.P.No.2  and thereafter the Service Engineer   has immediately  verified the alleged set and observed no defect in said set.  On next  day  the complainant     has received his hand set from the O.P.   No.2  and he  has been used the same till today  without any allegation   made before the  O.Ps till   now is in force.  But the complainant has suppressed all the real facts  of his mobile phone and absolutely  filed this  complaint   with misconceived, wrong, unfounded, baseless, false, untenable, imaginary, vexatious and frivolous facts not only to secure the  illegal and unlawful  gains from the O.Ps  but also  to  tarnish the reputation of O.P.No.1. No way the present answering O.Ps have knowledge   regarding defect of the alleged  mobile phone  of the complainant prior to filing of this case before this forum. Hence neither the answering O.P. No.1 nor the O.P. 2  has committed any deficiency in service or any unfair trade practice in this case. The complainant has miserably failed to prove the same against   these answering  O.Ps and also failed to provide  any evidence/document regarding the same. Hence the  averments  made by the complainant  are all balled lie and she is  not entitle to get any relief which prayed in the   complaint and liable to be dismissed.

The  O.P. No. 1 & 2   in their written version  para-12 contended that it is clearly that there was neither any deficiency in service  committed by the O.Ps. Further there is no chance of any defect present in said mobile phone. If any defect  recently appear in said set then it will also rectify in warranty within short time  as the because the warranty will in force till 12.11.2018. Then where is the problem?   Because all defects of mobile phone  rectify  by replacing  the new spares against the defective spares only. Hence the allegations of the complainant  are bald and vague. The complainant be put to strict  proof  of the   same, otherwise the facts can not be believe on simple submission of the complainant.  Also the law well settled that, the burden of proof  lies with the complainant he has to prove her case beyond all reasonable  doubts.  Hence the  averments made by the complainant are all balled lie and is pertinent to mention  here that with relentless commitment to quality, consistent dedication to customer  satisfaction and unparalleled standards of service, the O.P. No.1 is recognized as a bench mark for new age technology, superior quality,  digital concepts and personalized service that has ensured loyal customers and nation wide   claim in the industry.

The O.Ps.   in their written version para No. 14 contended that  it is settled proposition of law as held in  Ravneet Singh Bagga Vrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bona  fide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service in the case in hand the complainant has failed to prove any  deficiency in service on the part of the O.Ps.

The  O.P.  No.1 & 2 in their written version  para-15   has  mentioned citation i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”. The O.P. No. 1 &2  vehemently contended that in this case there is no defect in the  mobile set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.1   and to secure the unlawful gains from the O.Ps.

The  O.P. No. 1 &2 in their written version  para-16   has  mentioned   citation  in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

                Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  OPs   failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it is appears that the mobile set  which was purchased by the complainant had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period. It appears that the complainant invested  a substantial amount and purchased the mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defects were not removed by the O.Ps who  knows the defects from time to time from the complainant.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris.  Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.

                                                                                               

 

 

 

                                                                                O R D E R

                In  resultant the complaint petition  is allowed  on contest against the O.Ps.

The O.P. No. 1 (Manufacturer)  is directed to return back the defective product from the complainant  inter alia  replace the Samsung mobile set   with a new one with fresh warranty without charging any extra amount.    There is no order as to cost and compensation.  

                The O.P. No.2 & 3   are  ordered to refer the matter to the O.P. No.1  for early compliance of the above order.

                The entire directions shall be carried out with in 45 days from the  date of receipt   of this order.   Copies be served to the parties  free of cost.

Dictated and corrected by me.          Pronounced in the open forum on        16th  .  day  of    August, 2018.

 

MEMBER                                               MEMBER                                                                                              PRESIDENT