BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 164 of 2017.
Date of Instt.:14.07 .2017.
Date of Decision: 22.11 .2017.
Kuldeep Kumar son of Shri Pala Ram, resident of village Mohamadpur Rohi, Tehsil and District Fatehabad.
..Complainant
Versus
1.M/s Khurana Mobile Gallery, 103 Palika Bazar, Fatehabad, Tehsil & District Fatehabad, through its Proprietor Gaurav Khurana.
2.M/s Mobile Solutions, Palka Bazar, Fatehabad, Tehsil and District Fatehabad through its Proprietor/Partner.
3.Samsun India Electronics Pvt. Ltd., 2nd to 4th Floor, Tower-C, Vipul Tech Square, Sector 43, DLF Golf Course Road, gurgaon-122002 through its Authorized Signatory.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.M.L.Bhambhu, Adv. for the complainant.
Sh.Yogesh Gupta, Adv. for OPs No.2 and 3.
OP No.1 already ex-parte.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he purchased a mobile/ handset of Samsung Company Model Galaxy A510 for an amount of Rs.22,000/- on 05.10.2016 vide Invoice No.16515 from Op no.1 and the price of the mobile was paid by the complainant at the time of purchase. Op no.2 is the Authorized Service Center of the mobile and OP No.3 is the manufacturer of the said mobile, therefore the complainant is the consumer of OPs. At the time of purchase of mobile a warranty of one year of the mobile was given to the complainant. However after passing of few months the handset did not work properly and the problems of dots on the display, hanging and heating at the time of charging crept in the said mobile. Therefore the complainant approached to Op No.2 i.e. Service Center of OPs for rectification of the problems on 01.05.2017. Op No.2 kept the mobile with him for 2-3 days and handed over the same to the complainant stating that all problems in the handset has been removed and now there is no error in the handset. It is further submitted that after passing few hours the handset in question started to create the aforesaid problems along-with problem of not working of vibration. On this the complainant again visited the office of OP No.2 on 12.05.2017 and made a complaint regarding the said problem of hanging, heating and not working of vibration etc. After checking the mobile the OPs No.2 disclosed that there is a major problem in the handset and to come again after two days for repair of the same. Thereafter the complainant again visited the office of OP No.2 and after inspection of the handset the OP No.2 informed that the handset is having manufacturing defect and the same cannot be repaired.
2. It is further submitted that the complainant asked the OPs several times to return the original cost of the mobile amounting to Rs.22,000/- along-with interest but nothing was done on the part of OPs. It is further submitted that the above said act on the part of Ops amounts to deficiency in service and unfair trade practice and as such the complainant is entitled for refund the original price of the mobile along-with compensation on account of mental torture and physical harassment. Hence, this present complaint.
3. On Notice OPs No.2 and 3 appeared and filed a joint written statement wherein various preliminary objections with regard to territorial jurisdiction, maintainability, cause of action, locus-standi, concealment of correct facts etc. have been raised
4. On merits, it is submitted that a manufacturing defect in a mobile cannot be determined on simpliciter submissions and needs a proper analysis test report to confirm the same. However, in the present case the complainant has failed to produce any evidence or expert opinion that the mobile in question is having manufacturing defect. It is further submitted that the complainant with regard to his complaint approached the Service Center of the Ops on 01.05.2017 and reported some display problems in the unit. The Service Engineer of the Service Center examined the unit and the display of the unit was replaced and the unit was working in perfect condition. Thereafter the complainant never visited any of the service center of the OPs with regard to any complaint in the mobile in question. It is further submitted by the OPs that they were and are still ready to repair the unit as per warranty policy. Therefore there is no deficiency on the part of answering OPs in rendering service to the complainant and as such the present complaint is without any merit and deserves dismissal.
5. OP no.1 did not contest the present complaint and as such he was proceeded ex-parte.
6. The complainant in his evidence tendered his affidavit as Annexure CW1/A along-with documents as Annexure C1 and Annexure C2. On the other hand Sh.Anindya Bose filed his affidavit on behalf of OPs No.2 and 3 and OPs No.2 and 3 tendered in evidence documents as Annexure R1 and Annexure R2 and closed the evidence.
7. The learned counsel for the complainant in his arguments contended that the mobile in question was purchased by the complainant from the OPs on 05.10.2016 by making a payment of Rs.22,000/-. The said mobile was having a warranty of one year. After passing a few months the said handset did not work properly and problem of dots on the display, hanging and heating crept in the mobile. Therefore the complainant approached to Op No.2 i.e. Care Centre of OPs on 01.05.2017 who kept the mobile for 2-3 days and returned the same with assurance that all the problems in the handset have been removed. However after few hours the aforesaid problems crept against along-with problem of not working of vibration, not having battery back-up. Thereafter on 12.05.2017 the complainant again approached to OP No.2 and complained regarding the problems of hanging, heating and not working of vibration and not working of app in the mobile. The Op no.2 temporarily repaired the mobile and further asked the complainant to come after three days as the mobile has major problems. However after three days the OP no.2 disclosed that the mobile has manufacturing defect and the same cannot be repaired. Since the mobile was having a inherent /manufacturing defect but the OPs neither replaced the mobile nor refunded the original price of the same. The said act on the part of OPs amounts to deficiency in service and as such the complainant is entitled to get the payment of original price of the mobile along-with compensation.
8. On the other hand the learned counsel for the OPs in his arguments reiterated the averments made in the written statement filed by the OPs and further contended that the present complaint is baseless, devoid of any merits, without any cause of action and has been filed to grab unlawful benefits from the OPs. It is further contended by the learned counsel that the complainant has alleged manufacturing defect in the handset but no report of expert has been produced to prove manufacturing defect in the product. In absence of the expert opinion it cannot be established that the handset is having inherent or manufacturing defect. In support of his contention the learned counsel relied upon the decision of Hon,ble National Commission in case cited as III (2014) CPJ Page 312. The learned counsel further contended that the complainant with regard to his complaint had approached the service center of OPs on 01.05.2017 and reported display problem in the product. The engineer of the service centre examined the handset and replaced the display. Thereafter the complainant never visited any of the center of the OPs. Therefore there is no negligence or deficiency on the part of OPs in rendering service to the complainant and as such the present complaint is devoid of any merits and liable to be dismissed with costs.
9. We have duly considered the arguments advanced by learned counsel for the parties and have also examined the entire material placed on the record of the case. It is not disputed that the mobile in question was purchased by the complainant from Op No.1 for an amount of Rs.22,000/-. It is also not in dispute that OP No.2 is the Authorized Service Centre of the OPs and Op no.3 is manufacturer of the mobile in question. It is also not in dispute that the mobile in question was bearing a warranty of one year. The complainant in support of averments made in the complaint has tendered his affidavit as Annexure CW1/A wherein he has testified all the facts so set out by him in his complaint. According to the complainant, the mobile was having warranty of one year, however, the same developed problems within the warranty period and the handset was brought to the OP no.2 i.e. Service Center which is evident from Annexure C-2. However the grievance of the complainant was not redressed and the problems in the mobile reoccurred. The OPs failed to replace the handset in question. The act and conduct of the Ops shows that instead of redressing the grouse of the complainant they are trying to avoid the matter on one pretext or the other. It is worthwhile to mention here that The Consumer Protection Act, 1986 was enacted to provide protection to consumers from getting cheated or harassed by suppliers and it is the duty of the Forum to provide a simpler and quicker access to redressal of consumer grievances. This Forum feel concerned that these days in fast life style of society, cellular set has become part and partial of every person and due to huge demand of mobiles the companies are attracting the customers by adopting different modes of advertisements but at the same time after selling the mobile set oftenly customers as well as consumers face a lot of problem even after paying the full cost of mobile set. From the above mentioned facts and circumstances, it is clearly established that the Ops. are deficient in providing service and have failed to redress the grievance of the complainant as per his satisfaction. There is enough on the record that the set in question went out of order within warranty period and the complainant has been able to prove deficiency in service on the part of the OPs as they failed to remove the defect in the mobile during the warranty period. The complainant had purchased the mobile in question on 05.10.2016 and he had lodged complaint regarding not working of handset properly for the first time on 01.05.2017, which shows that he had used the mobile for 7 months, therefore, the ends of justice would be met if the Ops are ordered to return the cost of the mobile with deduction of 20 % being depreciation value of the mobile set. On this point reliance can be taken place from case law decided by Hon’ble SCDR Panchkula
on dated 28.05.2014 in F.A.No.460 of 2014 in case titled as Deepjot Singh Thukral Vs. The Mobile Store.
11. In this regard, we are fortified with the observations in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others 2014(1)CLT588 wherein 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”.
Accordingly, we allow the complaint and direct the OPs to refund the cost of the mobile with deduction of 20% being depreciation value of the mobile set, subject to depositing of the mobile with the OPs. Order of this Forum be complied within a period of 30 days from the date of receipt of copy of this order, failing which the awarded amount will carry interest @ 7% per annum from the date of order till actual realization. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.22 .11.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President
DCDRF, Fatehabad
