Delhi

North East

CC/135/2016

Shri Aabid Malik - Complainant(s)

Versus

M/s Mehran Telecom - Opp.Party(s)

29 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 135/16

                           

In the matter of:

 

	Shri Aabid Malik R/o C-204/16, Gali No.2, Near Kalyan Cinema, Chauhan Banger, Delhi-110053.	Complainant
	Versus
1.         2.         3.	M/s Mehran Telecom Shop No. C-14/8, Rishi Kardam Marg Chauhan Banger, New Seelampur, Delhi-110053.   M/s Samsung India Electronic Pvt Ltd Regd. Office: A-25, Mohan Co-operative Industrial Area New Delhi-110044.   M/s Shelsima Technologies Pvt Ltd (Samsung Mobile Service Centre) Shop No.52-53, 1st Floor, Street No.2 Swami Dayanand Marg Near Balaji Tiles/Marbles, Main Road Opp. New Krishna Nagar Metro Station West Arjun Nagar, Delhi-110051.	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION      :

20.05.2016 29.11.2018 29.11.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly the facts relevant for the disposal of the present complaint are that the complainant had purchased a mobile phone  Samsung J-7 bearing IMEI No. 358159/07/561639/3 on 28.03.2016 from OP1 seller manufactured by OP2 vide invoice book no. 25 serial no. 1241 for a sum of Rs. 15,000/- inclusive of vat. At the time of purchase the complainant was given assurance by OP1 of proper functioning of the said mobile which came with a one year warranty, failing which the same shall be replaced with a new phone if any problem occur therein on or before 27.03.2017. The subject mobile however started giving heating and display problem just eight days after its purchase i.e. on 05.04.2016 for which problem the complainant went to OP1 which advised him to approach the OP3, service centre of OP1. The complainant went to OP3 next day i.e. 06.04.2016 and handed over the subject mobile to one of its executives who told him that the problem in the said mobile shall be rectified subject to payment of Rs. 7,000/- to which the complainant objected stating that the mobile was fully covered under warranty period and OP3 cannot charge any amount  to rectify the defects in the mobile, rather the complainant is entitled to get a new replacement but OP3 flatly refused to entertain the complainant or accede to his request and instead issued a jobsheet/service request vide bill no. 4211982281 dated 06.04.2016 on the request of the complainant. The complainant issued a legal notice through counsel on 07.04.2016 to the OPs which was duly served on them but the OPs failed to comply with the same. Lastly the complainant, being aggrieved by the unethical, unprofessional attitude of OPs causing him severe mental agony, disturbance, physical torture and financial loss due to sale of faulty, defective and substandard mobile has filed the present complaint before this Forum alleging deficiency of service against all the OPs and prayed for issuance of directions against the OPs to refund the cost of the mobile i.e. Rs. 15,000/- alongwith interest @18% p.a. thereon, Rs. 50,000/- as compensation for mental and physical harassment and torture and Rs. 22,000/- towards litigation expenses to be paid to the complainant by the OPs.  

Complainant has attached copy of invoice dated 28.03.2016 towards purchase of the said mobile in question from OP1, copy of jobsheet dated 06.04.2016 issued by OP3 and copy of legal notice with postal receipts and track report of service.

2. Notices were issued to the OPs on 06.06.2016. OP1 did not appear despite service effected on 19.05.2016 and therefore was proceeded against ex-parte vide order dated 19.10.2016 on which OP2 and OP3 filed their joint written statement in which while admitting the factum of purchase of the subject mobile in question by the complainant and submitted that the complainant had reported issues related to auto discharging, heating and auto touch not working in the subject mobile, the OP3 stated that on scrutiny of the mobile it was found that there was patches on the display of the mobile which on examination of the product were found to be due to physical damage and hence were not covered under warranty terms and conditions of the product. OP2 and OP3 further submitted that the said patches in the display could not have occurred without tampering of the mobile and stated that there is no deficiency of service on the part of OP3 since they were ready to provide their services to the complainant without any delay and repair the product on chargeable basis since the same was out of warranty as per the policy of the OP2. Therefore OP2 and OP3 prayed for dismissal of the present complaint as having being filed with ulterior motive to harass OP2 and OP3 since there was no manufacturing defect in the subject mobile.
3. Evidence by way of affidavit was filed by complainant and OP2 & OP3 on 23.11.2016 and 07.12.2016 respectively reiterating their respective grievance/ defence.
4. Written arguments were filed by complainant and OP2 & OP3 on 02.01.2017 and 27.04.2017 respectively to reinforce their respective claim / defence in the present complaint.

OP2 and OP3 filed terms and conditions of warranty by way of original warranty card booklet of the said mobile and in hearing dated 18.04.2018, the complainant informed this Forum that he was offered a settlement by way of replacement of upgraded mobile by legal department of OP2 to which in the subsequent hearing dated 24.05.2018, counsel for OP2 submitted that no compromise / settlement is possible since the case is that of physical damage which was not covered under warranty as per clause 18 of warranty terms and conditions. Therefore, this Forum was of the considered opinion that in accordance with Section 13 (1) (c), of CPA the subject mobile should be sent for seeking conclusive technical expert report with the help of scientific instrument to determine the nature of defects alleged therein (manufacturing defect) and the complainant was directed to furnish the address and location of an independent government agency / expert technical establishment registered with state government located within the vicinity of this Forum. The complainant though complied with the said directions and furnished the address of such an agency located at Laxmi Nagar, Vikas Marg, New Delhi, however when he was directed as per the mandatory requirement under Section 13 (1)(d) of the Act to deposit the expenses to be incurred for carrying out the necessary inspection / analysis, the complainant refused to bear the same on statement giving before this Forum on 06.09.2018 and the matter was put up for oral arguments which were heard on 29.11.2018.

5. We have heard the rival contentions of both the parties and giving thoughtful consideration to the arguments advanced and material placed on record by both the parties.

The jobsheet dated 06.04.2015 clearly mentions ‘patches on display so we can’t cover this H/S under warranty’ as endorsed by OP3. The counsel for OP2 and OP3 has drawn our attention to the signature of the complainant on the said jobsheet at the point signature of customer certifying that ‘above job has been done to my satisfaction’. The warranty terms and conditions specifically terms 18 mentions defects arising out of physical damage are not covered under warranty. Therefore it was imperative to seek technical expert opinion which the complainant was directed to comply with which he declined and failed to adhere to. The Hon’ble Delhi SCDRC in Vinod Bhagat Vs General Motors (India Ltd) 1998 III CPR 152 (Del) had dismissed a complaint where the complainant had declined to have his Opel Astra Car inspected by technically qualified person to determine the defects alleged therein on grounds that the nature of defects could be determine by an expert with help of scientific instruments. The Hon’ble National Commission in Chandeshwar Kumar Vs Chairman TELCO Ltd   (2006) 3 CPR 402 (NC) had held that where no expert opinion was placed on record as to whether vehicle had any manufacturing defect and no additional evidence / material to prove the same, the State Commission was justified in dismissing complaint alleging deficiency of service.

6. In light of the settled law that question of manufacturing defect should be resolved on the basis of evidence which in the present case could have been conclusively brought on record by expert opinion of a technically qualified person but for adamancy shown by the complainant in contravention to the legal proposition of law, we are not inclined to allow the present complaint as a same would amount to letting the complainant take advantage of his own act of omission perverse to law and in contravention to the mandate of Section 13 (1)(c) and (d) of Consumer Protection Act.
7. We therefore dismiss the present complaint on grounds that question of manufacturing defect and compensation cannot be determined without evidence adduced and in the present case in absence of an expert opinion on record to show that the subject mobile was defective.   
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.  File be consigned to record room.
10.  Announced on  29.11.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member