Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 389.
Instituted on : 25.08.2015.
Decided on : 17.03.2016.
Sapan Ahlawat son of Shri Chandervir Singh Ahlawat Resident of House No. 280-A, Subhash Nagar, Rohtak.
………..Complainant.
Vs.
- M/s Jagdamba Communication, Gohana Adda, Rohtak through its Prop./Managing partner/Manager.
- Balaji Communication, Authorized Samsung Mobile Service Centre, 187-188, New HUDA Complex, Rohtak through its Authorised person/Proprietor.
- Samsung India Electronic Pvt. Ltd. SCO 354, Sector 31, Gurgaon Through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh. Deepak Bhardwaj, Advocate for complainant.
Opposite party no.1 exparte.
Sh. Kunal Juneja Advocate for opposite party No.2 & 3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Mobile phone of Samsung Company on 09.01.2015 with IMEI No.355216060972828 for a valuable consideration of Rs.64500/- from opposite party no.1 who is authorized dealer of opposite party no.2 and opposite party no.3 is the manufacture of the Samsung Mobile phone. It is averred that since the date of its purchase, the mobile phone is creating a lot of trouble and problem to the complainant. There was problem in charging and auto run off. Therefore, the complainant approached the opposite party no.1 who asked the complainant to approach the opposite party no.2 the authorized service centre of Samsung Company and thus the complainant visited opposite party no.2 and asked to rectify the defect in charging and auto off and no sim show, then the officials of opposite party no.2 said that this set used to have the same problems and with the passage of time the problem will be automatically cured/rectified. It is averred that again in the first week of May 2015, the same problem started and the complainant deposited the above said phone with the opposite party no.2 but the fault of the mobile phone remains unchanged. It is averred that complainant again visited the above said mobile phone to the opposite party no.2/authorized service centre on 22.07.2015 with the similar fault. It is averred that the official of the opposite party no.2 conveyed to the complainant that the above said mobile phone is having latent manufacturing defect/problem and hence same cannot be repaired or rectified and the opposite party no.2 gave assurance to the complainant to replace the above said mobile phone of same model to the complainant but later on the same was refused by the opposite party no.2. It is averred that complainant made so many requests to the opposite parties either to replace the mobile set or to refund the price but to no effect. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to make the payment of Rs.64500/- alongwith interest, compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties but opposite party no.1 did not appear despite service and as such opposite party no.1 was proceeded against exparte vide order dated 01.10.2015 of this Forum. Opposite party No.2 & 3 appeared and filed their written statement submitting therein that complainant approached the service centre of the company on 16.07.2015 with complaint no.4197869501 and the Engineer of the company checked the unit and found that there was a minor problem in the alleged mobile and the same was got O.K. after some updating in the mobile. It is averred that again the complainant approached the service center on 22.07.2015 and no problem was found in the unit. It is averred that even after filing of the complainant the complainant on 02.12.2015 approached the opposite party no.2 vide call no.4205719183 with lining on display and the call has been cancelled by asc with remarks “IMPACT DAMAGE”, it was told to the complainant that the unit is barred by the warranty due to external damage/mishandling and does not covered under warranty, complainant refused for repair as per company policy. But the complainant become adamant and started alleging that he wants a new mobile in replacement of alleged mobile. It is submitted that as per the terms of warranty the warranty means repair not replacement and in the present case there is no question of giving replacement, compensation or refund as the unit is physically damaged. It is averred that there is no deficiency in service on the part of opposite party and dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C12 and has closed his evidence. On the other hand opposite party no.2 & 3 has tendered affidavit Ex.RW1/A and has closed his evidence.
5. We have heard ld. Counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile set on 09.01.2015 for a sum of Rs.64500/- of Samsung Company from the opposite party no.1. It is also not disputed that as per job sheet Ex.C2 dated 22.07.2015 there was problem of ‘No sim Show’ and the fault found by the engineer was in handset and battery. The contention of ld. Counsel for the complainant is that the opposite party no.2 returned the mobile back without sorting out the issues properly and the complainant is facing problems due to defected handset provided by the opposite parties which is having manufacturing defect. On the other hand contention of ld. Counsel for the opposite party no.2 & 3 is that the defects were removed during the warranty period. It is further submitted that on 02.12.2015 the complainant approached the opposite party No.2 with lining on display and the call has been cancelled by ASC with remarks “IMPACT DAMAGE” as the unit is barred by the warranty due to external damage/mishandling and does not cover under warranty but the complainant refused for repair as per company policy. It is averred that the handset in question is required to checked by the proper analysis/test by the appropriate laboratory as per section 13(1)(c ) of C.P.Act. It is further contended that there is no question of replacement or refund of mobile set in question.
7. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 09.01.2015 and the defects in the mobile set appeared during the warranty period and the same could not be repaired/replaced by the opposite party no.2 & 3 despite repairs. The contention of the opposite parties that there was ‘IMPACT DAMAGE’ to the mobile set is not proved by any documentary evidence. Regarding the other plea taken by the opposite party that the handset in question is required to checked by the proper analysis/test by the appropriate laboratory as per section 13(1)(c ) of C.P.Act, in this regard reliance has been placed upon the law cited in 2014(3)CLT178 titled as Krishanpal Singh Vs. Tata Motors & others whereby Hon’ble National Commission, New Delhi has held that: “Vehicle repeatedly taken to service station for repairs-The manufacturing defect, must be assumed-Onus of proof shifts upon OP, and it is further held that: “Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like Ops to appoint their own experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect”, as per II(2005)CPJ 136(NC) titled as Scooters India Limited & Anr. Vs. Madhabanandea Mohanty & Ors. whereby Hon’ble National Commission, New Delhi has held that: “Expert testimony not always necessary though if given will add weight of evidence”, as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others whereby Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified. The set in question is in the possession of complainant.
8. In view of the facts and circumstances of the case, it is observed that the manufacturer is liable to refund the price of mobile set. As such it is directed opposite party No.3 i.e. manufacturer shall refund the price of mobile set i.e Rs.64500/-(Rupees sixty four thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 25.08.2015 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. However complainant is directed to hand over the mobile in question with accessories to the opposite parties. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
17.03.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
