Haryana

Panchkula

CC/282/2020

PUNEET KULSHRESTHA. - Complainant(s)

Versus

MOBILE CARE. - Opp.Party(s)

IN PERSON.

22 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	282 of 2020
Date of Institution	:	16.09.2020
Date of Decision	:	22.08.2022

 

Puneet Kulshrestha, S/o H.C.Kulshrestha, R/o Apartment 17, GH-21, Sector-5, Mansa Devi Complex, Panchkula-134114.

    ..….Complainant

Versus                                                                  

1.     Mobile Care, SCO 62, Ist Floor, Sector-5, Mansa Devi Complex, Panchkula Haryana-134114.

2.     Samsung India, 6^th Floor, DLF Centre, Sansad Marg, New Delhi-110001.

                                                                        ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person.

                        None for OP No.1(evidence closed by commission vide                     order dated 26.04.2022).

                        Ms. Jyoti Rani, Advocate for OP No.2.

                       

                       

ORDER

(Dr. Pawan Kumar Saini, Member)

 

1.             The brief facts of the present complaint as alleged are that the complainant had deposited Samsung Galaxy Tab A SM-T350 with Serial no.R52HB09W67N for service with mobile care on 06.08.2020 and was issued bill no.4307299269 by OP No.1 as on acknowledgment of service request. The OP No.1 provided initial estimate of Rs.750/- and asked to him that he can pick up the repaired tablet by morning of 08.08.2020 and he will receive a call to pick it up. The complainant didn’t receive any call and after waiting, around evening, visited the OP No.1. The executive of OP no.1 explained to him that as per their diagnosis, one of the hardware component “Motherboard” of Samsung tablet need to be replaced and it will cost Approx.Rs.8000/- and it will take around 4-5 days to fix it.   On 10.08.2022, the complainant visited OP No.1 and met supervisor and confirmed to proceed with motherboard replacement and the complainant deposit Rs.5,000/- as advance payment vide receipt no.4474. On 18.08.2020, he visited the OP No.1 and during that visit, he was informed that work was not even started and they don’t have ‘replacement spare-part” and even Samsung India also not having. There is no way they can repair it. After that, the complainant has served a legal notice upon the Ops on 19.08.2020 but no response has received from the Ops. The OP No.2, Samsung India deputed their Senior Executive to look into complaint and after number of phone calls sent response on 28.08.2020 refusing to repair/compensate complainant for false promise of repair. The act of OPs for non providing proper services to the complainant is deficiency in service on their part, which certainly caused physical and mental harassment to the complainant; hence, the present complaint.

2.             Upon notice, OP No.1 appeared through authorized representative and filed reply by raising preliminary objection qua complaint is not maintainable. It is stated that the OP No.1 is only the service provider of the concerned handset not the manufacturer of the said handset company. Thus, there is no deficiency in service on the part of Op No.1 and prayed for dismissal of the present complaint.

                Upon notices, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous; no cause of action. It is stated that the OP No.2 is liable to provide services to its customers only for the products made and sold in India, it is not liable to provide services as per the statutory provisions of law in India as well as per the warranty and services terms of the OP No.2.  The information regarding services and repairs of the overseas products has been duly loaded on the official service website of the OP in India that the Samsung India Electronics Pvt. Ltd. Shall not be liable to repair the products which are not repairable.  It is stated that in the present case, the product of complainant is a Tablet made in USA and also the product is produce of 2016 and also the said defective part of the product is no more be produced by the OP No.2 today and for the reasons of non-availability of part required to be replaced, the tablet in question is non-repairable and the same facts has duly been acknowledged to complainant by the OP No.2. He approached the service center i.e. OP No.1 on 06.08.2020 and reported NOT TURNING ON problem in the tablet in question. As already mentioned, the product of complainant is an OVERSEAS product and it was sold to him that the service /repair of the product shall be on chargeable basis and also it was duly informed to the complainant that the said repair/service of product shall be subject to availability of the part and accordingly, the tablet of complainant was deposited for necessary repairs. After checking the product thoroughly by the engineer, it was found that the PBA of the tablet is required  to be replaced  but the said part(PBA) is not available  due to the reason that the tablet is a product of year 2016 and the PBA for the tablet is no more produced today by the company.  The service centre duly informed the said fact and also the service center had returned the said advance amount for repair paid by complainant and the complainant has accepted the retuned advance amount along with his unit but the complainant has accepted the returned advance amount alongwith his unit.  Neither the complainant had paid the said amount to OP No.2 not any such instruction have been given by the OP No.2 to OP No.1 to collect any advance payment for repair of tablet in question. It is submitted the complainant sent a complaint to OP No.2 qua his tablet and it was duly replied to the complaint of complainant by the OP that product of complainant is an overseas product and the OP is not legally bound to provide services to him. Thus, there is no deficiency in service on the part of Op No.2 and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint.

3.             The complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-6 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.2 has tendered affidavit Annexure R2/A along with documents Annexure R2/1 & R2/2 and closed the evidence.

4.             We have heard the complainant and the learned counsel for OP No.2 and gone through the entire record available on file including written arguments filed by the complainant, minutely and carefully.

5.             The grievances of the complainant as alleged in the present complaint is that the Ops had failed to carry out the repair of the defective Samsung Galaxy Tab A SM-T350, bearing Serial No. R52HB09W67N by replacing the necessary spare part even after receiving a sum of Rs.750/- on 06.08.2020 and Rs.5,000/- on 10.08.2020 from the complainant. During arguments, the complainant reiterating the averments made in the complaint contended that the Op No.1 had assured him to rectify the said Samsung Galaxy tablet and in lieu of repairs charges received a sum of Rs.750/- from him on 06.08.2020 and thereafter, received a sum of Rs.5,000/- on 10.08.2020 vide receipt no.4474(Annexure C-2) for the replacement of the Hardware component i.e. mother board of the Samsung tablet. It is contended that the amount as paid by complainant was returned to him without removing the defects in the tablet. It is vehemently contended that that a legally enforceable contract had come into existences between the complainant and OPs after the receipt of sum of Rs.5000/- by OP No.1 vide receipt no.4474 (Annexure C-2) from the complainant. It is contended that the OPs had no right to back out from their promise and thus, there has been lapses and deficiencies on the part of the OPs while rendering services to him. In support of his contention, the complainant has placed reliance upon the law laid down by the Hon’ble State Commission, Odisha, Cuttack in F.A.No.A/492/2018 titled as Mr. Supriyo Ranjan Mohapatra Vs. M/s Amazon Development India Pvt. Ltd. decided on 11.01.2021.

6.             The OP No.1 vide its short reply has stated that the present complaint is not maintainable against it because the OP No.1 is only the service provider of the concerned handset and not the manufacturer of the said handset. It is further stated that if the complainant has any claim, then, the same is liable to be filed against the Samsung India Electronic Ltd.

7.             The OP No.2 has resisted the complaint by raising preliminary objections as well as on merits in its written statement. The first objection is that the product of the complainant is a tablet made in USA, which was manufactured in 2016. It is alleged that the product, which is not made and sold in India, the OPs are not liable to provide services as per the terms and condition of the warranty. This objection is not tenable in view of the fact that the product in question admittedly, belongs to OP No.2, which was deposited with its authorized service centre i.e. OP No.1 vide acknowledgment(Annexure C-1). Further, the complainant had not claimed the free services without any consideration as he had deposited a sum of Rs.5,000/- on 10.08.2020 with OP no.1.

8.             Another plea has been taken by the learned counsel for OP No.2 is that the product in question is no longer manufactured by OP No.2 and thus, the necessary repairs could not be carried out due to non availability of the part. It is vehemently contended that the tablet in question is non-repairable and thus, no deficiency can be attributed on the part of the OP No.2.

9.             This plea is also not tenable as the manufacturer of a product is supposed to provide the necessary spare part of its product to the customers even beyond the warranty period for a reasonable period. The product in question was allegedly purchased in 2016 and thus, a long period had not expired. The manufacturers are not expected to dis-continue the manufacturing of the spare parts leaving its consumer in lurch.   

10.            The next objection is that the complainant has not placed on record any bill qua the purchase of the tablet in question. This objection is also rejected in view of the fact that the complainant has not claimed the services of the OP without any consideration. Admittedly, the complainant has made the payment of Rs.5,000/- to OP No.1 vide receipt no.4474, who is authorized service centre of OP No.2 i.e. manufacturer and thus, the objection raised disputing the status of complainant as a consumer is baseless and meritless.

11.            On merits it is contended that the amount of which is deposited i.e. Rs.5,000/- alongwith the tablet in question had already been returned to the complainant, who had accepted the same without any objection. It is vehemently argued that the complainant was duly informed that the product shall be repaired on chargeable basis subject to the availability of the necessary spare parts. It is contended that the tablet in question is no longer produced by the OPs and thus, due to non availability of the part, the tablet in question is not repairable. The learned counsel further took the plea that the OP No.1 had received a sum of Rs.5000/- from the complainant as per his own decision and without any such instructions from OP No.2. This plea is also rejected in view of the fact that the OP No.1 is an authorized service centre of OP No.2, who works under the control and supervision of manufacturer.

12.            After hearing rival contentions of both the parties, it is found that the tablet in question was deposited by the complainant with OP No.1 on 06.08.2020 vide receipt(Annexure C-1), who after examining  the problem concerning the tablet, asked the complainant to deposit a sum of Rs.5,000/-, which was paid as advance payment vide receipt (Annexure C-2). We have perused the terms and conditions of receipt (Annexure C-1), wherein it is mentioned that in case of repair expenses above Rs.500/-, repair will be carried out after taking advance payment. There was no valid justification on the part of the OP no.1 to accept the advance payment from the complainant when the necessary spare parts were not available. The OP No.1 should have inquired from the manufacturer about the availability of necessary part before asking the complainant to make the advance payment. The OP no.2 cannot be permitted to run away from its liability in the matter as its authorized service centre work under its control and supervision. Moreover, the OP No.2 as discussed above should not have discontinued the manufacturing of the spare part of its product immediately leaving its customers in lurch.  

13.            In the above stated factual and legal proposition, the lapses and deficiencies on the part of the Ops and their indulgence into unfair trade practice is well proved and thus, the Ops No. 1 & 2 are jointly and severally liable to compensate the complainant. 

14.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1.     To pay a lump sum amount of Rs.2,000/- to complainant on account of mental agony, harassment and cost of litigations charges.

 

15.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 22.08.2022

 

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                Member                  Member                                President

 

Note: Each and every page of this order has been duly signed by me.

 

                                      Dr. Pawan Kumar Saini

                                              Member