Order-11.
Date-18/05/2015.
Complainant Goutam Ghosh by filing this complaint has submitted that complainant purchased one Samsung Galaxy S Duos 2 GT – S7582 mobile phone from S.H. Mumtazuddin Times (P) Ltd. on 14.02.2014 on payment of Rs. 9,340/-.
On 09.08.2014 morning when he tried to on the mobile phone, it did not respond and it could not be started. So, on that date at evening hour he went to Samsung’s Authorised Service Centre at Shree Krishna Services where after examination they informed that complainant’s mobile has liquid damage for which warranty is not applicable and for repairing the said set and it was stated by them that complainant shall have to pay Rs. 5,200/- as the Mother Board has to be replaced though warranty period shall be void for this product. When complainant opposed with the observation of the technician and mentioned that liquid damage is not possible for his mobile phone and denied the repairing charges of Rs. 5,200/- as the phone is under warranty.
Again complainant visited Samsung Service Centre at Karuna Management Services Pvt. Ltd. on 11.08.2014 and stated the happenings with the Samsung’s Sreerampore Service Centre while deposited the mobile phone for repairing. But after 10 days on 21.09.2014 Karuna Management Services Pvt. Ltd. informed that his mobile phone has liquid damage and it is needed for replacement of Mother Board subject to payment of Rs. 5,361/-. They have also offered a quotation for the same and in the meantime complainant also informed the matter to S.H. Mumtazuddin Times (P) Ltd. through Registered Post with A/D. But they showed him the Service Centre.
Thereafter complainant appealed through Samsung’s website for redressal of his grievance on 01.09.2014 and received several phone calls from Samsung’s Executive where they insisted for visit to Service Centre and lastly through mail, they directed to visit Karuna Management Services Pvt. Ltd. where they also mentioned to contact person Mr. Biswanath at Karuna Service Centre and as directed through email, complainant met Biswanath at Karuna Service Centre on 24.09.2014 and they received it and returned after two hours after repairing. But again the phone became dead within 4 hours of running after repairing. Again complainant reported the matter to Biswanath over phone and visited at Karuna Management Services Pvt. Ltd., again on 26.09.2014 and claimed for replacement of this faulty phone which they refused and also denied any written report about their inability. Then the matter again mailed through Samsung website on 26.09.2014 and in reply they mailed request for visiting service centre and again informed their inability about replacement.
In the meantime complainant lodged a complaint before CA & FBP, Kolkata Central Regional Director Office on 15.09.2014 for intervention of tripartite meeting and tripartite meeting was scheduled in the office of Assistant Director, CA & FBP, Kolkata Central Regional Director Office on 20.10.2014 with Karuna Management Services (P) Ltd. but no body attended on that day when mediation failed and he was asked to submit a complaint before this Forum and accordingly for deficiency and negligent manner of service and also for not getting proper service and for the negligent manner of service and even after existence of warranty complainant filed this complaint for redressal.
Notices were duly served upon all the ops and one Kamal Kant Lenka the official representative of the S.H. Mumtazudding Times (P) Ltd. appeared on 31.03.2015 by filing Power of Attorney/Authorisation and Samsung Electronic (P) Ltd. submitted power on 13.04.2015 but other op Karuna Management Service Centre (P) Ltd. did not appear even after service of notice and other op nos. 1 & 3 they appeared but did not file any written objection and ultimately on the date of argument/hearing Advocate of the op no.1 appeared and submitted oral version/argument. Accordingly the complaint was heard finally for decision.
Decision with reasons
On proper consideration of the argument as advanced by the Ld. Lawyer for the op no.1 and also considering the complaint including the materials as produced by the op, it is undisputed fact that complainant purchased a mobile phone from S.H. Mumtazudding Times (P) Ltd. on 14.02.2014 on payment of Rs. 9,340/-.
Admitted fact is that on 09.08.2014 the phone was found dead and complainant forthwith went to the Samsung Authorized Service Centre at Sreerampore Service Centre who stated that there is warranty but there is liquid damage for which warranty clause is not applicable and same cannot be repaired and this Mother Board can be replaced only payment of Rs. 5,200/-.
Thereafter complainant went to Karuna Management Service Centre (P) Ltd. for repairing and they received it. But after 10 days on 21.09.2014 reported that phone has liquid damage, so warranty is not applicable and mother board shall be replaced subject to payment of Rs. 5,350/- and subsequently complainant made several demands to the notice of manufacturer when manufacturer asked the complainant to go to Karuna Management Service Centre (P) Ltd. and on 24.09.2014 op no.2 received the same, repaired it, but within 4 hours again the mobile was found dead. The matter was brought to the notice of the ops, but they did not take any step and only stated that as because it is liquid damage, the warranty clause is not applicable and they shall not give any service without payment of Rs. 5,361/-.
But the matter was brought to the notice of CA & FBP and thereafter complaint was made to the Assistant Director, CA & FBP, Kolkata Central Regional Office on 20.10.2014, notice was served upon the op, but they did not turn up when complainant no doubt was compelled to file this complaint.
From the warranty it is found that warranty is for one year starting from 14.02.2014 to 13.02.2015. Fact remains that the phone is used by competent person and he has his capacity to use the same and in fact at the time of selling the battery was not up to the mark for which liquid damage was found and due to liquid damage, Mother Board was affected. But it has become a practice of op no.3 to sell outdated damaged mobile sets and many cases had been filed against this S.H. Mumtazudding Times (P) Ltd. and ultimately they were compelled to pay the entire amount to the purchaser.
Truth is that this Forum has passed so many judgements in respect of sale of mobile by S.H. Mumtazudding Times (P) Ltd. and this seller is renowned for selling damage mobile in many case and they have suffered and in the present case complainant suffered within warranty period. Practically all those battery are fitted with the new set and during use the battery is found damaged and from the battery water ooz and damaged the mobile and taking such chance, the manufacturer company and their service centres refused to repair it and in the present case that is found because in this case op nos. 1 & 3 appeared but did not filed any written objection and most interesting factor is that op no.2 has also not appeared before this Forum and not also CA & FBP. No doubt it is fact that they have their no capacity to defend this allegation.
Fact remains that warranty is there, then when there is warranty, then invariably it shall be repaired or replaced by the manufacturer including the seller, because it is the liability of the dealer the op no.3 and op no.1 to replace the same when admittedly mother board is found damaged. But it is settled principle of law that during warranty period, the service centre or manufacturer cannot claim any cost for repairing but that has been claimed by the service centre which is against the principle of warranty clause.
Moreover there is no allegation that liquid damage was caused by the complainant. Another factor is that after purchase within warranty period if liquid damage is found, then invariably it is proved that inside the battery valuable articles were not up to the mark for which damage was caused and the complainant as customer suffered and in view of the above promises and considering the conduct of the ops, we are convinced to hold that seller op no.3 sold damaged mobile set. No doubt it was the production of op no.1that means op no.1 is selling outdated damaged stock through renowned dishonest seller op no.3 and in the market he has such a fame that against this op no.3 so many cases have been filed before this Forum and have been decided against them and they are compelled to hand over the entire amount and cost etc. to the customers.
Considering the entire materials on record and the conduct of the ops and their negligence and deficient manner of service to the customer, the present complainant and also the nature of defending the case, we are confirmed that there is no denial against the allegation of the complainant because there is no written version and there is no evidence in chief filed by the op nos. 1 & 3 though op nos. 1 & 3 appeared. But only at the time of hearing the op no.1’s Ld. Lawyer appeared and submitted that mobile has liquid damage. So, warranty period is not applicable but such an argument is not applicable here when liquid damage was not caused by the complainant.
But considering all the above materials on record, we are convinced to hold that liquid damage was caused due to manufacturing defect when there was warranty period at the relevant time invariably ops are bound to make it free from all defect to use it by the complainant by such replacement when it is admitted that mobile is damaged then by changing mobile or by making it free from all defects. Op shall hand over to the complainant with a certificate that there is no defect. There is no internal liquid damage and it is free from all defects. But if ops are unwilling to repair the same along with such certificate along with further warranty for another six months from the date of delivery of the same, in that case op nos. 1 & 3 jointly and severally shall have to refund Rs. 9,340/- and also compensation of Rs. 3,000/- for causing mental pain, agony and harassment to the complainant along with cost of Rs. 2,000/- to the complainant within one month from the date of this order.
Accordingly this complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against the op nos. 1 & 3 jointly and severally with cost of Rs. 2,000/- and same is allowed exparte against op no.2.
Op nos. 1 & 3 are hereby directed jointly and severally to receive the damaged mobile from the complainant and make it free from all defects and usable and at the time of delivery op nos. 1 & 3 shall have to issue a certificate to that effect that the repaired mobile is free from all manufacturing defect and it is fit of use along with further six months warranty and if op nos. 1 & 3 fail to comply this part of order within 15 days from the date of this order, in that case, op nos. 1 & 3 jointly and severally shall have to refund the price amount of the said mobile i.e. Rs. 9,340/- and also compensation of Rs. 3,000/- for causing mental pain and agony and for harassing the complainant in such a manner even after existence of the warranty period up to 13.02.2015 and for not giving proper service to the complainant.
Op nos. 1 & 3 are hereby directed jointly and severally to pay that amount within one month from the date of this order failing which for non-compliance of the Forum’s order, op nos. 1 & 3 shall have to pay penal damages at the rate Rs. 200/- per day till full satisfaction of the decree and if it is collected, it shall be deposited to this Forum.
Even if it is found that op nos. 1 & 3 are reluctant to comply this order, in that case, penal proceeding u/s 27 of C.P. Act 1986 shall be started for which further penalty and fine shall be imposed against them.
