Haryana

Yamunanagar

CC/381/2015

Parmod Kumar S/o Shish Pal - Complainant(s)

Versus

M/s Bhalla Communication - Opp.Party(s)

Sushil Garg

31 Mar 2016

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                    Complaint No. 381 of 2015

                                                                                    Date of Institution: 23.10.2015

                                                                                    Date of Decision: 31.03.2016.

Parmod Kumar aged about 34 years son of Sh. Shish Pal, resident of House No. 306/C, Bharat Sewak Nagar, Bhuria Chowk, Jagadhri, District Yamuna Nagar.     

                                                                                                            …Complainant.

                                    Versus

1. M/s Bhalla Communication, near Laxmi Cinema, Yamuna Nagar its partner/Prop.   
2. Samsung Authorized Care Centre, Near Madhu Hotel, Yamuna Nagar through its Prop/Manager.
3. Samsung India Electronics Pvt. Ltd. Head Office 2^nd, 3^rd Floor, Tower-C, Vipul Tech Square Golf Course Road, Sector-43, Gurgaon, through its GM.

 

                                                                                                  …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Pankaj Verma, Advocate, counsel for complainant.

              OP No.1 ex-parte vide order dated 14.01.2016.

              Sh. Sumit Gupta, Advocate, counsel for OPs No.2 & 3. 

 

ORDER

 

1.                     Complainant  Parmod Kumar has filed the present complaint under section 12 of the Consumer Protection Act 1986 praying therein that the respondents (hereinafter referred as OPs) be directed to replace the defective mobile hand set with new or to refund the amount of Rs. 13,500/- with interest and further to pay compensation as well as litigation expenses. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a Samsung Galaxy Grand Prime mobile bearing EMEI No. 356554065468031/ 356555065468038 for a value of Rs. 13,500/- vide cash Invoice/ Bill No. 10830 dated 22.03.2015 (Annexure C-1) carrying warranty of one year from the Op No.1 manufactured by Op No.3 whose service centre is OP No.2. After few days of purchase, the mobile set become defective and there was hanging and automatically switched off problems. The complainant contacted to Op No.1 on 11.6.2015 for the problem of mobile set, who sent him to OP No.2. Thereafter, OP No.2 checked the mobile set in question after doing something and returned the same to the complainant. In the month of September 2015 ( 3.9.2015) the same problem i.e. automatically switched off arisen in the mobile set, the complainant again lodged the complaint to OP No.2 but after 3-4 days Op No.2 again returned the set in question after its repair, but set in question is not working properly. In the month of October 2015 ( 6.10.2015) again the set in question was got repaired by the OP No.2 from the service centre of OPs and after that repair the set in question has been heat up at the time of charging which shows that there is a manufacturing defect in it but the Ops did not hear the genuine request of the complainant.  As such, there is a great negligence and deficiency in service on the part of Ops. Hence, this complaint.   

3.                     Upon notice OPs No.2 & 3 appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable, not come to this Forum with clean hands, no locus standi to file and maintain the present complaint, no cause of action and on merit it has been mentioned that the complainant regarding his complaint about the alleged handset has never approached the company regarding any complaint as per details mentioned in the complaint. It has been further mentioned that the company provides one year warranty and the warrant is subject to some condition that in case the unit is liquid/water logged, serial number missing, physically damaged, mishandling tampering. The complainant must approach the company if there is any complaint in the alleged mobile but in the present case the complainant instead of approaching the company directly filed the present complaint. It has been further mentioned that the present complaint is filed without any expert opinion which will prove that the mobile is not working properly and merely by the oral version of the complainant it cannot be ascertained that the mobile is not working properly, the alleged hand set in question is required to checked by the proper analysis/test by the appropriate laboratory as per section 13 (1) ( c) of the Consumer Protection Act. Mere by oral version of complainant and without any proof of documents, it cannot be assumed that the alleged mobile has any defect. It has been further submitted that the OP company is always at the service of its customers on demand according to terms and conditions of warranty. The complainant must approach the company if there is any complaint in the alleged mobile. Lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as Bill bearing No. 10830 dated 22.03.2015 as Annexure C-1 and closed the evidence on behalf of complainant.    

5.                     On the other hand, counsel for the OPs No.2 & 3 failed to adduce any evidence, hence, the evidence of Ops No.2 & 3 was closed by court order dated 15.3.2016.

6.                     We have heard the learned counsel for the complainant and counsel for OPs No.2 & 3 and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is not disputed that the complainant purchased the mobile set of Rs. 13,500/- vide Bill No.10830 dated 22.03.2015 (Annexure C-1) from OP No.1. The version of the complainant is that he contacted to OP No.2 several times to get the repair of his defective mobile set and the same could not be repaired properly by the Ops but some problems remains as it is and lastly the OPs totally refused to accede the genuine request to repair the mobile set in question of the complainant.

8.                     On the other hand, plea of the OPs is that complainant never approached to OPs regarding any complaint in the mobile set in question. When the complainant never approached to the OPs then no question arise to refuse the complainant to provide repair of the mobile in question. Learned counsel for the OPs further argued that complainant has totally failed to file any job sheet, meaning thereby that the version of the OPs is duly proved that complainant never approached to the service centre of the OPs but the plea of the counsel for the OPs is not tenable as no affidavit has been filed on behalf of any service engineer or any incharge of the service centre even the OPs No.2 & 3 failed to file any evidence despite last opportunity and the evidence of the OPs No.2 & 3 was closed by court order. Although no job sheet has been filed by the complainant, however, it cannot be presumed that complainant has not suffered any mental agony and harassment on account of mobile phone in question which remains out of order due to one reason or the other and the complainant was forced to visit the service centre and further to file the present complaint.

9.                     The aim of the Consumer Protection Act is provide better and all round Protection to the consumers and this is the only law which directly pertains to market place and seeks to redress complaints arisen from it and it also provides effective safeguards to the consumers against different type of exploitation such as defective goods, unsatisfactory or deficient service and unfair trade practice. Moreover, this Forum feels that these days in the fast life style of the society, mobile set has become part and partial of the life of every person and due to huge demand of it, the companies are attracting the consumers by adopting the different models of advertisement but at the same time after selling the same oftenly customers as well as consumers face a lot of problem even after paying the full cost of the same. Beneficiary companies taking huge amount in shape of profit, are duty bound to provide proper services till last satisfaction of the consumer. Only consumer, when he buys a new product, he is under the impression that the same is found to be mechanically perfect or that a brand new product would be defect free. A new product could be defective as well. It could be that some errors are in significant but there are, may be many others, which substantially impair use of the product. If the product is defective, a consumer has a right to seek its replacement or refund of the price. Though the burden to prove the defect is on the consumer, yet it must be understood that consumer is not bound to pinpoint the precise nature of the defects or its cause or source. The warranty which is given for a product is for whole of the product and when it is found that the product does not perform properly, the warranty would be taken to have been breached, even if no individual part could be identified as defective.  The Consumer Forum has, however, to take into consideration consumer state of mind as well. After all complainant had invested in the new product to buy peace of mind hopping that the same is dependable and trouble free.  

9.                     Hence, in the circumstances noted above, we are of the considered view that the OP No.2 has totally failed to file any affidavit of the Manager/Mechanic of the Service Centre that the complainant never approached the OP No.2 regarding any complaint whereas the version of the complainant is duly supported by his affidavit as well as copy of bill. Further the complainant has filed the present complaint within warranty period. As such, there is a deficiency in service on the part of OPs No.2 & 3 and we have no option except allow the complaint of complainant.   

10.                   Resultantly, we partly allow the complaint of complainant and direct the Ops No.2 & 3 to refund an amount of Rs. 10,800/- being 80% of the total cost of the mobile set to the complainant within a period of 30 days after preparation of copy of this order, subject to deposit of old mobile set with OP No.2, failing which complainant shall be entitled to recover the interest at the rate of 9% per annum for the defaulted period. Ops No.2 & 3 are further directed to pay Rs 1000/- as compensation for mental agony, harassment as well as litigation expenses to the complainant. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court: 31.03.2016.

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

 

 

                                                                        (S.C.SHARMA    )

                                                                        MEMBER