BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.348 of 2015
Date of Instt. 18.08.2015
Date of Decision : 18.08.2016
Jagdip Singh Walia son of Ishwar Singh R/o 82-A, New Green Model Town, Jalandhar.
..........Complainant
Versus
1.M/s Mahavir Sales, The Mobile Shop, Shop No.3, Garden Colony, Model Town, Jalandhar through its Prop./Partner/Authorized person.
2.Samsung India Electronics Pvt Ltd., Corporate Office 2nd-4th Floor, Tower-C, Vipul Tax Square,Golf Course, Sector-43, Gurgaon, Haryana, India.
3.Shabad Enterprises Samsung Service Centre, situated at Pam Rose, World Trade Centre, opp.Indo Canadian Bus Service, near Bus Stand Jalandhar, through its Manager/Owner/Authorized Person.
.........Opposite parties
Complaint Under Section 12 of The Consumer Protection Act.
Before: S. Bhupinder Singh (President)
Sh.Parminder Sharma (Member)
Present: Sh.AS Sandha Adv., counsel for the complainant.
Sh.Vishal Chaudhary Adv., counsel for OPs No.2 & 3.
Opposite party No.1 exparte.
Order
Bhupinder Singh (President)
1. The complainant has filed the present complaint under section 12 of 'The Consumer Protection Act' against the opposite parties (hereinafter called as OPs) on the averments that complainant purchased a Samsung mobile set from OP No.1 vide invoice dated 4.4.2015 for a sum of Rs.1450/-. The said mobile set became dead within four months of its purchase. Complainant approached OP No.1 who told the complainant that as the product is within warranty, complainant should approach the service centre i.e. OP No.3. Complainant approached OP No.3 who checked the mobile phone of the complainant and after 15 minutes returned the mobile set to the complainant stating that mobile set was not within warranty as the warranty of the mobile set has already expired in the year 2013. Complainant showed bill dated 4.4.2015 to the OP No.3 that he purchased the mobile set on 4.4.2015 and it was within warranty but the OP No.3 did not pay any heed to the request of the complainant. Then complainant approached OP No.1 who told the complainant to leave the mobile set with OP No.1 and they will get the same repaired and replaced with new one from OP No.2. But OP No.1 on 7.7.2015 returned the mobile set to the complainant stating that mobile set of the complainant is perfectly in working condition but when the complainant switched on the mobile set, it was totally dead. So, the OPs neither repaired the mobile set of the complainant nor returned the same with new one. On such averments, the complainant has prayed for directing the OPs to refund the amount of the mobile set i.e. Rs.1450/-. He has also claimed compensation and litigation expenses.
2. Upon notice, OPs appeared and filed their written replies. In its written reply OP No.1 pleaded that complainant purchased the aforesaid mobile set from OP No.1 vide invoice dated 4.4.2015. The mobile set of the complainant was got checked from an expert who found that the battery was destroyed due to over charging by the complainant. After putting the new battery in the mobile set, it became fully functional and the complainant received back the set fully repaired and thereafter he never came to the shop of OP No.1 nor made any complaint orally or in writing. OP No.1 denied other material averments of the complainant.
3. In its written reply, OPs No.2 & 3 pleaded that OP No.3 approached by complainant with some problem in the mobile set and the complainant was directed to submit his handset with OP No.3 for inspection about the condition of the handset and also to ascertain whether the mobile set is within warranty or not. But the complainant never submitted his handset to OP No.3. Complainant has not alleged any specific irreparable manufacturing defect in the mobile set nor he produced any expert evidence to prove that the mobile set is suffering from some inherent defect nor repairable. OPs No.2 & 3 denied other material averments of the complainant.
4. In support of his complaint, complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C3 and closed his evidence.
5. On the other hand, learned counsel for the OPs No.2 & 3 has tendered affidavit Ex.OPW2/A alongwith copies of documents Ex.OP2/1, Ex.OP2/2, Ex.C2 and Ex.C3 and closed evidence.
6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that the complainant purchased a Samsung mobile set from OP No.1 vide invoice dated 4.4.2015 Ex.C1 for a sum of Rs.1450/-. The said mobile set became dead within four months of its purchase. Complainant approached OP No.1 who told the complainant that as the product is within warranty, complainant should approach the service centre i.e. OP No.3. Resultantly, complainant approached OP No.3 who checked the mobile phone of the complainant and after 15 minutes returned the mobile set to the complainant stating that mobile set was not within warranty as the warranty of the mobile set has already expired in the year 2013. Complainant showed bill dated 4.4.2015 Ex.C1 to the OP No.3 that he purchased the mobile set on 4.4.2015 and it was within warranty but the OP No.3 did not pay any heed to the request of the complainant. Then complainant approached OP No.1 who told the complainant to leave the mobile set with OP No.1 and they will get the same repaired and replaced with new one from OP No.2. But OP No.1 on 7.7.2015 returned the mobile set to the complainant stating that the mobile set of the complainant is perfectly in working condition but when the complainant switched on the mobile set, it was totally dead. So, the OPs neither repaired the mobile set of the complainant nor returned the same with new one. Learned counsel for the complainant submitted that all this amounts to deficiency of service on the part of the OPs qua the complainant rather OP No.1 has sold the used mobile set to the complainant under the garb of new one vide invoice Ex.C1.
8. Whereas the case of the OP No.1 is that complainant purchased the aforesaid mobile set from OP No.1 vide invoice dated 4.4.2015. The mobile set of the complainant was got checked from a expert who found that the battery was destroyed due to over charging by the complainant. After putting the new battery in the mobile set, it became fully functional and the complainant received back the set fully repaired and thereafter he never came to the shop of OP No.1 nor made any complaint orally or in writing. So, there is no deficiency of service on the part of the OP No.1 qua the complainant.
9. Whereas the case of the OPs No.2 & 3 is that OP No.3 was approached by complainant with some problem in the mobile set and the complainant was directed to submit his handset with OP No.3 for inspection about the condition of the handset and also to ascertain whether the mobile set is within warranty or not. But the complainant never submitted his handset to OP No.3. Complainant has not alleged any specific irreparable manufacturing defect in the mobile set nor he produced any expert evidence to prove that the mobile set is suffering from some inherent defect nor repairable. So, the OPs No.2 & 3 submitted to this Forum to direct the complainant to produce the handset, so that the OPs No.2 & 3 could check the status of the mobile set and its warranty. Consequently, complainant produced the mobile set in question in this Forum on 6.11.2015 which was handed over to counsel for the OPs No.2 & 3. The said mobile set was checked by OP No.3 vide job sheet dated 7.1.2016 Ex.C2 and it was found that the mobile set was having warranty for the period from 2.11.2012 to 1.11.2013 as per report dated 7.1.2016 Ex.C3 as per SIM activation which was verified in the Samsung Software and this fact was also reflected in the job sheet Ex.C2 that the mobile set was out of warranty. So, OPs No.2 & 3 were not liable to repair the mobile set of the complainant without charging the amount of repair. Learned counsel for the OPs No.2 & 3 submitted that there is no deficiency of service on the part of the OPs No.2 & 3 qua the complainant.
10. From the entire above discussion, we have come to the conclusion that the complainant purchased this mobile set being new one from OP No.1 on 4.4.2015 vide invoice Ex.C1 for a sum of Rs.1450/-. The said mobile set became dead within four months from its purchase and complainant approached OP No.3 authorized service centre of OP No.2 on the directions of OP No.1 but the handset of the complainant was not repaired by the OP No.3. Resultantly, complainant filed the present complaint and OPs No.2 & 3 requested to this Forum to direct the complainant to hand over the mobile set to OP No.3 so that its status of warranty could be checked. On the directions of this Forum, complainant produced the mobile handset in question in this Forum on 6.11.2015. It was handed over to counsel for the OPs No.2 & 3 and the same was checked by OP No.3 vide job sheet dated 7.1.2016 Ex.C2 in the Samsung Software and it was found that the mobile set in question was used by placing SIM in the mobile set in question on 2.11.2012. The said software was checked in the Samsung Software whic verified that the SIM activation in this mobile set was done on 2.11.2012. So, its warranty was for the period from 2.11.2012 to 1.11.2013. In this regard OPs No.2 & 3 issued certificate dated 7.1.2016 Ex.C3. Thereafter, OP No.1 did not turn-up and as such it was proceeded against expert. All this shows that OP No.1 has sold this used mobile set to the complainant under the garb of new one vide invoice Ex.C1 on 4.4.2015 that is why the OP No.1 has not mentioned the IMEI number and model number etc of this mobile set on this invoice Ex.C1 nor the OP No.1 led any evidence to rebut the evidence produced by the complainant as well as OPs No.2 & 3 which fully proved that the OP No.1 has played fraud with the complainant and sold the used second hand mobile set in question to the complainant under the garb of new one vide, invoice Ex.C1 for a sum of Rs.1450/-. Resultantly, OP No.1 has committed not only deficiency in service qua the complainant but also committed unfair trade practice. As such, we allow this complaint against OP No.1 with cost and OP No.1 is directed to refund Rs.1450/- i.e. price of the mobile set to the complainant. OP No.1 is also directed to pay compensation for playing fraud with the complainant for a sum of Rs.5,000/-. OP No.1 is also directed to pay the cost of litigation to the complainant to the tune of Rs.2000/-. Copies of the order be sent to the parties free of cost, under rules. File be consigned to the record room.
Dated Parminder Sharma Bhupinder Singh
18.08.2016 Member President
