DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> C.C. No. 297 of 17.10.2008 <br /> Decided on : 30.4.2009 <br /> <br /> <br /> Gurcharan Singh S/o Sh. Gurdial Singh S/o Sh. Pala Singh, R/o Village Jodhpur Romana, P.O. Naruana, Tehsil & District Bathinda. <br /> .... Complainant<br /> Versus<br /> <br /> <br /> 1. M/s. Bansal Mobile Care, Shop No. 6, S.S.D Sabha Market, The Mall, Bathinda through its Proprietor/Partner.<br /> 2. Samsung India Electronics Pvt. Ltd., Authorised Service Centre, Bathinda through its Partner/Proprietor/Manager, Krishna Market, Backside of Hotel Krishna Continental, Bathinda.<br /> 3. Samsung India Electronics Pvt. Ltd., 3rd Floor, IFCI, Tower 61, Nehru Place, New Delhi. <br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> Sh. Pritam Singh Dhanoa, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> For the complainant : Sh. Pardeep Sharma, Advocate<br /> For the opposite parties : Sh. Vinod Garg Advocate, counsel for <br /> opposite parties No. 2 & 3<br /> Opposite party No. 1 already exparte<br /> <br /> O R D E R.<br /> <br /> PRITAM SINGH DHANOA, PRESIDENT:- <br /> 1. Sh. Gurcharan Singh S/o Sh. Gurdial Singh, resident of Village Jodhpur Romana, P.O. Naruana, Tehsil & District Bathinda has filed this complaint under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against M/s. Bansal Mobile Care, Bathinda and Samsung India Electronics Pvt. Ltd., New Delhi and its authorised service centre, Bathinda for giving them direction to replace mobile set and in the alternative to refund cost thereof paid by him alongwith interest @ 18% P.A with further direction to pay a sum of Rs. 50,000/- on account of mental tension and agony and a sum of Rs. 5,500/- as costs of litigation. Briefly stated, the case of the complainant may be described as under :-<br /> That he purchased one mobile set (J-600) bearing IMEI No. 359777/01/484082/1 for a sum of Rs. 5,100/- vide bill No. 2207 dated 25.7.2008 from opposite party No.1. The said mobile set has been manufactured by opposite party No. 3 and opposite party No. 2 is its authorized service centre. At the time of sale of the mobile set, opposite party No. 1 assured the complainant that the set is of best quality and free from any defect and gives good performance. He further gave assurance that in case of any defect, the same shall be removed within no time and in case not rectified, then to replace the same. On his assurances, complainant was prompted to purchase the mobile set, but a fortnight after purchase thereof, it stopped functioning properly. He approached opposite party No. 2 on the advice of opposite party No.1. They also prepared the job card to the effect that screen of the mobile set remains off its screen is not displayed. The opposite party No. 2 retained the mobile set with him for a period of 2/3 days, before it was returned to the complainant after effecting repairs. <br /> 2. After a couple of days, mobile set again became defective. The complainant again approached opposite party No.2 who orally informed him that there is manufacturing defect in the set which is not curable. On being requested by the complainant to replace the set, opposite party No. 2 refused to accede to his request although it was within warranty period. One Miss Pooja present in his premises told the complainant that duty to replace the set is either of opposite party No. 1 or opposite party No.3 and not of opposite party No.2. Thereafter, complainant approached opposite party No. 1 with a request to replace his mobile set, but he did not take any action. He has been subjected to mental and physical harassment due to the conduct of the opposite parties and has to incur avoidable expenditure for filing the instant complaint. Hence, the complaint.<br /> 3. Notice of the complaint was issued to opposite party No.2, but no-one appeared on his behalf, as such, opposite party No. 1 was proceeded against exparte vide order dated 28.11.2008, whereas Sh.Vinod Garg Advocate appeared on behalf of the remaining opposite parties and filed written version resisting the complaint by taking preliminary objections that complaint is misconceived and not maintainable as complainant is not a consumer within the ambit of definition of consumer given in the Act; this Forum has got no jurisdiction to entertain and try the complaint because as per conditions printed on card of warranty, court at New Delhi has exclusive jurisdiction; that complainant has not approached this Forum with clean hands and has concealed material facts and there is no defect in the mobile set; that complainant has inflated his claim and has no locus-standi to file and pursue the same. On merits, it is submitted that if the defect has occurred in the mobile set of the complainant within warranty period, then only repairs can be effected but order for replacement cannot be made by this Forum. The factum of issuance of job sheet and warranty card is not denied and it is submitted that said documents were filled as per information given by the complainant, but on examination of the set, it was found to be perfectly in good condition. It is submitted that after re-installation of software, the set was returned to the complainant. It is denied that he has been subjected to mental and physical harassment. Rest of the averments made in the complaint have been denied and a prayer has been made for dismissal of the complaint with costs.<br /> 4. On being called upon by this Forum to do so, learned counsel for the complainant furnished his affidavit Ex.C.1 and copies of documents Ex.C.2 & Ex.C.3 before he closed his evidence. On the other hand, learned counsel for the contesting opposite parties also furnished affidavit Ex.R.1 of Sh. Swami Padmanabhan, Occupation Branch Manager and closed the evidence.<br /> 5. We have heard the learned counsel for the complainant and opposite parties No. 2 & 3 and gone through the oral and documentary evidence adduced on record by them with their kind assistance.<br /> 6. To begin with, learned counsel for the complainant Sh. Pardeep Sharma Advocate has submitted that the complainant has been successful in proving his plea that mobile set purchased by him from opposite party No. 1 started giving trouble within a period of fortnight after its purchase and defect could not be removed by opposite party No.2 who was approached by him at the instance of opposite party No.1. Learned counsel has further submitted that defect in the mobile set of the complainant has occurred during the warranty period, as such, the same be either replaced or opposite parties be directed to pay the cost thereof alongwith interest, compensation and costs as demanded in the complaint.<br /> 7. On the other hand, learned counsel for opposite parties no. 2 & 3 Sh. Vinod Garg Advocate has has submitted that initial onus to prove that there was some defect in the mobile set purchased by the complainant was upon him, but he has not examined any expert to prove the said defect and has withheld the warranty card. Learned counsel has also argued that as per own case of the complainant, defect has occurred in the mobile set purchased from opposite party No. 1 and manufactured by opposite party No. 3 within warranty period. As such, even if this Forum comes to the conclusion that complainant is entitled to any relief, then direction may be given for repair of the mobile set and not for its replacement as no guarantee for proper functioning thereof has been given to the complainant by either of the opposite parties. Learned counsel has urged that complaint being false and frivolous is liable to be dismissed with costs. In support of his contentions, learned counsel has relied upon 2001(1)CLT-33(SC) Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines and another wherein it has been held by Hon'ble Apex Court that where deficiency in service is alleged, then burden of proving the same rests with the person who alleges the same. Learned counsel has further placed reliance on 2006(2)CLT-150(SC) Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another wherein complainant had alleged manufacturing defect in the car purchased by him and warranty card clearly refers to the replacement of defective parts and not the car. It was held by Hon'ble Apex Court that since the contract is not silent regarding sale as to warranty, as such, High Court was not justified in directing the opposite parties to replace the vehicle purchased by the complainant.<br /> 8. We do not find merit in the argument of learned counsel for the contesting opposite parties because his plea regarding purchase of mobile set and defect therein is proved by the duly sworn affidavit Ex.C.1 of the complainant, copy of retail invoice Ex.C.2 and work order Ex.C.3. As per the copy of invoice, complainant purchased the mobile set in question for a consideration of Rs.5,100/-. The copy of work order Ex.C.3 bears the signatures of representative of opposite parties. It is specifically mentioned therein that display of screen of mobile set purchased by the complainant has broken. Since the document bear the signatures of official of opposite parties No. 1 & 2, therefore, complainant cannot be non-suited even if he has not examined any expert to prove the defect in his mobile set. The contents of affidavit Ex.R.1 of Sh. Swami Padmanabhan, Occupation Branch Manager of the contesting opposite parties are not corroborated by any evidence. He has not claimed that he personally dealt with the complaint lodged by the complainant. No evidence has been produced by the opposite parties to establish that defect in the mobile set purchased by the complainant could not be removed due to any lapse on his part. In view of the peculiar circumstances of the case, we are of the opinion that non-production of warranty card is of no consequence. The evidence against opposite party no. 1 has gone uncontroverted to the effect that defect in mobile set sold by him bears manufacturing defect as he has been proceeded against exparte. There is no dispute that he is dealer of opposite party No.3. As such, opposite party No. 3 cannot escape the liability of supplying of defective mobile set to the complainant. We have carefully gone through the ratio of judgments relied upon by the learned counsel for the contesting opposite parties, but have come to the conclusion that facts and circumstances thereof, were quite distinguishable from those of the case in hand.<br /> 9. It is not disputed by opposite party No. 3 that opposite party No.2 is its service centre. In the given circumstances, we are of the opinion that repair or replacement of the mobile set purchased by the complainant are not adequate reliefs and he deserves for grant of relief for refund of the amount paid by him for purchase thereof. Since he has been subjected to mental and physical harassment due to supply of defective mobile set by the opposite parties, therefore, he is also entitled to adequate amount on account of compensation and costs for filing of instant complaint.<br /> 10. For the aforesaid reasons, we accept the complaint and direct the opposite parties to refund the complainant a sum of Rs. 5,100/- as cost of mobile set and to pay him a sum of Rs. 1,000/- on account of compensation and another sum of Rs.1,000/- as costs for filing of instant complaint within a period of one month from the date of receipt of copy of this order. The complainant shall deposit the mobile set in his possession with opposite party No.1 within a period 15 days from the date of receipt of copy of this order. The liability of the opposite parties to make refund of the amount and for payment of compensation and costs to the complainant would be joint and several.<br /> 11. The copies of this order be sent to the parties free of cost as per rules on the subject. <br /> 12. File be indexed and consigned.<br /> <br /> Pronounced (Pritam Singh Dhanoa)<br /> 30.4.2009 President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> <br /> (Amarjeet Paul)<br /> Member