BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.3/2017.
Date of Instt.: 03.01.2017.
Date of Decision: 10.04.2017.
Inder Singh son of Sheri Hans Raj resident of House No.250 Sector-3 Fatehabad Tehsil & District Fatehabad.
..Complainant
Versus
1.M/s Khurana Mobiles, Palika Bazar, Fatehabad Tehsil & District Fatehabad through its proprietor Gaurav Khurana.
2. M/s Mobile Solutions, Palika Bazar, Fatehabad Tehsil & District Fatehabad through its Proprietor/Partner.
3.Samsung India Electronics Pvt. Limited 2nd to 4th Floor Tower-C, Vipul Tech Square Sector 43DLF Golf Course Road, Gurgaon-122002 through its Authorised signatory.
..Opposite Parties.
Before: Sh.Raghbir Singh, President.
Smt. Ansuya Bishnoi, Member. Sh.R.S.Panghal, Member
Present: Complainant in person.
Opposite Party No.1 exparte.
Sh. Yogesh Gupta, Advocate for opposite parties No.2 & 3.
ORDER
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Brief facts of the present complaint are that complainant had purchased a mobile of Samsung company model Galaxy Alpha SM-G850Y bearing IMEI No.355427/06/02/3838/9 for a sum of Rs.35,500/- in the month of November, 2014 from OP No.1 and at the time of selling the mobile the OP No.1 had assured that there is 4G facility including the facility of operating the 4G SIM in the mobile. It has been further averred that in the month of December, 2016 the complainant had purchased a 4G SIM of JIO Company bearing No.8168792765 and inserted the same in the above said mobile but it did not run/start, therefore, complainant approached OP NO.1 who asked the complainant to visit OP No.2. Thereafter the complainant visited OP No.2 and narrated the above said problem who after checking the same asked the complainant that in order to run 4G SIM an instrument is required to be fitted in the mobile and the cost thereof would be borne by the complainant. The complainant requested the OPs either to replace the mobile having features of 4G SIM or to refund the cost of the same but the OPs did not pay any heed and flatly refused to do so. The act and conduct of Ops clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Ex.C1 and documents Annexure C1 to Annexure C4.
3. Upon notice, only Ops No 2 & 3 appeared and contested the complaint by filing joint reply as OP No.1 failed to appear before this Forum despite issuance of notice, resulting into its exparte. OPs No.2 and 3 have submitted that complainant’s allegations that there has been unfair trade practice, deficiency in service and negligence on the part of opposite parties are baseless and without any merit. It has been further submitted that manufacturing defect in the product cannot be determined on the simplicitor submissions as it require proper analysis test report and the OP Nos. 2 & 3 cannot be held liable for the act and conduct of OP No.1 because all the features/product description of all the products of Samsung India Electronics are printed on the packing box of the product and it was the duty of the consumer to check the features/function of the unit. It has been further submitted that though the complainant had visited OP No.2 on 17.12.2015 with a complained that 4G SIM was not working but in whole complaint he has not alleged any defect in the said handset. The engineer of the service centre after checking the mobile disclosed that the handset was not supporting 4G SIM and in order to run the 4G SIM the said unit was required to be modified. It has been further submitted that installation of 4G SIM support system was an additional function on chargeable basis and therefore, estimate was given to the complainant but he refused to approve the estimate and insisted for installation of the same free of costs. The OPs No.2 & 3 are ready to provide service to the complainant as per warranty policy. Other allegations made in the complaint have been controverted. Appearing Ops have prayed for the dismissal of the complaint. In evidence the appearing Ops have tendered affidavit of Sh.Anindya Bose as Annexure RW1/A and document Annexure R1.
5. We have heard learned counsel for the complainant and learned counsel for the OPs No.2 & 3 and have perused the case file carefully.
7. Purchasing of mobile by the complainant from OP No.1 on 09.11.2014 (Annexure C-1) is not disputed. The complainant had produced the box of the mobile hand set before this Forum and drew the attention towards the features printed on the same (copy thereof (four pages) has been placed on file as Annexure CII) and argued that at Sr.No.2 facility of 4G features along with other facilities is mentioned. The grouse of the complainant is that he had purchased the handset by spending huge amount to the tune of Rs.35,500/- keeping in view the facilities printed on the box as well as advance facilities of 4G which were to be launched in future but when he inserted the 4G SIM of JIO company (Annexure CIII) in the handset it did not support the same. Undisputedly, the complainant had approached the OP No.2-service centre of OP No.3 about the problem in question but the stand taken by the OP Nos.2 & 3 in their joint reply that the unit in question is only for using 3G SIM and in order to make the unit 4G supportive it requires to be modified is quite contradictory because the manufactures have clearly mentioned on the packet of the same that the handset is having 4G features, therefore, at this stage it cannot deny or shift their liability. It was for the manufacturer to provide the features/facilities as disclosed on the box of the product and any addition/alteration in the features of the unit after selling the unit clearly amounts to unfair trade practice as mentioned in Section 2 (1) (q) & (r) of CP Act, which is reproduced as under:
(q) " trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;
(r) " unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
(1) the practice of making any statement, whether orally or in writing or by visible representation which,-
(i) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re- built, second- hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
In such cases, this Forum has taken a sustained view that whenever a consumer goes for a brand new goods like the mobile his minimum expectation is that he would not encounter or face any inconvenience qua the features mentioned on the box of the unit by the manufacturer. In the present case on one hand the OPs No.2 & 3 are claiming themselves as reputed company having worldwide business and on the other hand they have not provided the features mentioned on the box despite charging the handsome amount from the customer. It is well established on the case file that the complainant has been deprived from using the mobile as per the provided facilities despite the fact that he has invested huge amount of Rs.35500/- for purchasing the product in question. The plea of the learned counsel for the OP Nos. 2 & 3 that the complainant had used the mobile for almost 2 years and at this stage he cannot raise this issue before this Forum is not tenable keeping in view the findings as well as the provisions of Section 2 (1) (q) & (r) of the CP Act made above. Hence, the present complaint deserves acceptance. Accordingly, present complaint stands allowed against OPs No.2 & 3. The OP No.1 has no role to play in the matter in question, therefore, present complaint stands dismissed against OP No.1. The Ops No.2 & 3 are directed to refund the billed amount of the unit in question subject to depositing of mobile set with accessory with the OPs No.2 & 3 by the complainant, if any. Order of this Forum be complied jointly and severally within a period of 30 days from the date of receipt of copy of this order, failing which the complainant will be entitled for interest @ 9 % per annum from the date of filing of the complaint till realisation. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
Announced in open Forum. Dated:10.04.2017
(Raghbir Singh)
President
District Consumer Disputes
Redressal, Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
