BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,FATEHABAD.
Complaint No.:417 of 2019. Date of Instt.: 30.09.2019.
Date of Order: 29.09.2020.
Rajender Kumar son of Sh.Ramkaran resident of Takar Basti Fatehabad Tehsil & District Fatehabad.
…Complainant.
Versus
- M/s Bhagwati Mobile Gallery (authorized dealer) Palika Bazar, Fatehabad through its Proprietor.
- Samsung Service Centre, 4 marla colony, behind Palika Bazar (authorized service centre of Samsung).
- Samsung India Electronics Pvt. Ltd. 2nd to 4th Floor, Tower-C, Vipul Tech. Square, Sector-43, DLF Golf Course Road, Gurgaon-122002.
…Respondents/OPs
Complaint U/s 12 of the Consumer Protection Act,1986.
Before: Sh.Raghbir Singh, President.
Dr.Rajni Goyat, Member.
Present: Sh. R.K.Verma, Advocate for the complainant.
Sh. Yogesh Gupta, Advocate for OP no. 3.
OP no. 1 & 2 already exparte.
ORDER
The present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by the complainant against the Opposite Parties (hereinafter to be referred as OPs) with the averments that the complainant had purchased the mobile handset of Samsung Company Model J-6 for an amount of Rs.12,000/- vide invoice no. 3540 on 05.12.2018 from OP no. 1. It is further submitted that at the time of purchase of the abovesaid handset the OP no. 1 assured to the complainant that there is warranty/guarantee of one year on the mobile and during this period, if any manufacturing defect will be found, then the handset will either be repaired or replaced.
2. It is further submitted that there was heating problem, hanging problem in the handset besides other problems because number of applications such as PHP viewer and email do not open in the handset, therefore, a complaint in this regard was made by the complainant to OP no. 1 and upon this the OP no. 1 gave the address of OP no. 2 being authorized service centre of the company. On this, the complainant approached to OP no. 2 on 23.08.2019 but it was not repaired and again on 18.09.2019 the handset was not repaired by Op No.2 and regarding this job sheet No.4290813695 was also issued. The Op No.2 has not repaired the handset till today and on 18.09.2019 asked the complainant that there is manufacturing defect in the handset. It is further submitted that on account of the abovesaid act on the part of OPs, the complainant suffered mental agony and physical harassment besides other losses. Hence, the present complaint.
3. On being served, the OP no. 3 appeared and filed written statement, wherein various preliminary objections with regard to cause of action, concealment of true and correct facts and abuse of process of law etc. have been raised. It has been further submitted that the complainant had reported the heating and hanging problem in the hand set on 18.09.2019 vide call No.4290813695 and prior to that date no issue had been reported in the unit and the handset had worked properly for a period of 9 months from the date of purchase. The handset was checked by the engineer of the company but there was no such problem in the unit. The warranty of one year means that in case of any problem with the unit, the unit will be repaired or its parts will be replaced as per warranty policy but the warranty was subject to some conditions and the warranty of the unit becomes void in the conditions such as Liquid Logged/ Water logging, Physically damage, Serial No. Missing, Tampering and Mishandling/Burnt etc. There is no defect/manufacturing defect in the unit and the service centre told that the unit is not repairable due to defect. It is further submitted that in view of the abovesaid position there is no deficiency on the part of OPs in rendering service to the complainant and as such the present complaint is liable to be dismissed.
4. Despite proper service the OP nos. 1 & 2 did not appear before this Forum and as such they were proceeded against exparte vide order dated 11.11.2019.
5. The learned counsel for the complainant tendered in evidence affidavit of the complainant as Annexure C1 alongwtih the documents Annexure C-2 & Annexure C3. On the other hand, the learned counsel for OP no. 3 tendered in evidence affidavit of Anup Kumar Mathur as Annexure RW1/A on behalf of OP no. 3 along-with the documents as Annexure R-1 & Annexure R-3 and closed the evidence of OP no. 3.
6. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record of the present case. Purchasing of mobile by the complainant from OP No.1 is not disputed. According to the complainant, the mobile started creating problems from the very beginning and the same was deposited with the OP No.3 as is evident through Ex.C2 (job sheet). The grievance of the complainant is that during warranty period the mobile set went out of order causing mental agony, harassment and wastage of time to him and even the set is not working properly till today and the OPs have failed to redress the grievance of the complainant. The Op No. 3 has come with the plea that there is no defect/manufacturing defect in the set as the alleged problem in the mobile set has been reported for the first time after 9 months of its purchase and the complainant has never approached to the service centre prior to 18.09.2019 which shows that the mobile set is working properly. This plea appears to be plausible on one hand but it is not enough to fetch anything favourable to the ops because the complainant has specifically pleaded that the mobile set is not still working properly and when his grievance is not redressed, he knocked at the door of this Forum by way of this complaint filed on 30.09.2019. This fact is not disputed that the complainant has visited the service centre for repairing of the mobile set, therefore, the plea taken by the Ops that there is no defect in the set is not tenable. Vide the present complaint the complainant has prayed for refund of Rs.12,000/- as original cost of the mobile handset in question. It is a settled proposition of law that refund of a product can be ordered only in case there is any manufacturing defect in the said product. In the present case, the onus was upon the complainant to prove that the mobile handset in question was suffering from manufacturing defect. However, the complainant has not produced any cogent, convincing or authentic evidence or opinion of an expert to the effect that the handset in question is suffering from a manufacturing defect. Therefore, the prayer of the complainant to refund the original cost to him is not acceptable. However, keeping in view all the facts and circumstances of the case, we deem it appropriate to direct the OP nos. 2 & 3 to replace the handset in question with new one having the same feature subject to depositing the handset alongwith its accessories with the OPs within a period of 15 days. The Op Nos. 2 & 3 are further directed to pay a sum of Rs.2000/- as compensation on account of mental agony, harassment and cost of litigation etc. The complaint against Op no.1 stands dismissed. The order be complied within a period of 30 days. A copy of this order be furnished to both the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
Announced in open Forum:
Dt.29.09.2020.
(Rajni Goyat) (Raghbir Singh)
Member President DCDRC, Fatehabad.
