BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Jaspreet Singh, son of Shri Sohan Singh, resident of House No.317, Sector-12, Panchkula, Haryana. 

                                                                           ….Complainant

Versus

1.     M/s National Enterprises, SCO No.1031, Sector-22-B, Chandigarh       through its Authorised Signatory.

2.     Samsung Service Care Centre, SCO No.62, First Floor, Swastik   Vihar, MDC, Sector-5, Panchkula through its authorized        signatory.

3.     Samsung India Electronics Pvt. Ltd. 6^th Floor, DLF Centre, Sansad       Marg, New Delhi-110001 through its Managing Director.                                                                                                                                                                                                          ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Suman Singh, Member

For the Parties:   Complainant in person alongwith Sh.Mohit Rana, Advocate.

                        None for OP No.1.

                        Defence struck off OP No.2 vide order dated 05.10.2023.

                        Ms. Jyoti Rani, Advocate for the OP No.3.                                              

ORDER

(Satpal, President)

1.             The brief facts, as per pleadings  and documentary evidence placed on record by the parties, in the present complaint, are, that the complainant purchased a mobile set, namely, Samsung note 10 Lite 8GB/128GB having IMEI No.355468110005667 from opposite party no.1(hereinafter referred to as OP No.1)on 13.08.2020 vide bill no. 1269 amounting to Rs.32,999/-. The insurance plan of the opposite party no.3(hereinafter referred to as OP No.3) covering the accidental damage and liquid damage was also purchased by paying a sum of Rs.2,299/- on the assurance of salesman of the OP No.1. The complainant was also induced to purchase buy-back plan for Rs.599/- by the salesman of OP No.1. The said mobile set said was having warranty of one year but the same had started giving problems qua call recording fingerprint, hanging while charging and heating. The complainant in order to seek the resolution of the said issues visited the customer care centre of OP No.3 at Sector-22, Chandigarh, wherein the mobile set was put on the machines and after making various calibrations, the same was returned to him with the assurance that no problem would arise in future in the mobile set. It is averred that the said issues call recording, fingerprint, hanging while charging and heating still persisted in the mobile set and thus, the complainant in order to seek the resolution of the said issues visited the authorized service centre i.e. OP No.2 on 26.08.2020, who received the mobile set and issued the job-sheet. The handset was returned to the complainant on 28.08.2020 but the defects were not removed. It is stated that the complainant had prepared the video showing the said issues in the mobile set and the same were in transferred/stored a Pen Drive. The complainant sent an email on the customer care of OP No.3 on 29.08.2020, who assured the complainant that the technical team would contact him and would resolve the issue. It is averred that the issue qua the defects in the mobile set has not been resolved by the OPs so far. Due to the act and conduct of the Ops, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, Sh.Gurvinder Singh, Proprietor of OP No.1 appeared and filed the written statement mentioning therein that a Samsung note was purchased by the OP No.1 from the Distributor and the same was sold to the complainant on 13.08.2020 in good running condition vide bill no.1269. After some days, the mobile set started giving the problems to the complainant and on this, he was suggested to go to the service centre for checking as OP No.1 was not authorized to repair or replace the mobile set as per Samsung terms and conditions. It is stated that only service centre is authorized to do service repair or replace the mobile set and thus, the OP No.1 is not involved in the present complaint in any manner.  

3.             Upon notice, the OP No.2 appeared, through Sh. Sumit, its Authorized Representative to contest the complaint, but he did not file the written statement was not filed despite availing several opportunities including the last opportunity; therefore, the defence of OP No.2 was struck off by this Commission, vide its order dated 04.01.2022. 

4.             Upon notice, the OP No.3 appeared through its counsel and filed written statement by raising preliminary objections therein that the complainant has not approached the Commission with clean hands as he has concealed several material facts in the complaint. It is submitted that the complainant has alleged defects in the mobile set but the same cannot be determined on the simpliciter submissions of the complainant as per expert opinion is mandatory under Section 38(2)(c) of the Consumer Protection Act to prove the allegations/ averments made in the complaint. It is submitted that no defects was found in the mobile set in question. The complainant had approached the service centre of OP No.3 on 26.08.2020 vide job-sheet no.4308728608 for the first and last time and reported the issues qua call recording, heating and fingerprint problem in his handset. It is stated that the engineer of the service center duly received the handset and checked, but no such defect was found in the same. The engineer told the complainant that the mobile was having no defects and the same was working fine. The engineer conducted a quality check test of the mobile set but no defect was found therein and as per the said quality check result(i.e. QC Result) the mobile set was found qualifying all the  parameters. A technical report was prepared by the service center, according to which, the mobile set was found as having ‘NO DEFECT’. However, the complainant was not satisfied and took the delivery of the handset. It is submitted that the email sent by the complainant seeking the replacement of the mobile set was duly replied that the mobile set on its checking was found ‘OK’ and no defect was found in the same. It is submitted that the mobile set was provided one year warranty, during which, only replacement of any defective part was liable to be made. The complainant has claimed the relief beyond the agreed terms and conditions of the warranty.

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3; as such, the present complaint is liable to be dismissed.

5.             Replication to the written statements of the OPs No.1 & 3 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs No.1 & 3.

6.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 in evidence and closed the evidence by making a separate statement. On the other hand, the OP No.1 did not submit  its evidence in shape of affidavit along with documents etc. despite  availing several opportunities; accordingly, its evidence was closed by the Commission on 05.10.2023. The learned counsel for OP No.3 has tendered affidavit as Annexure R-3/A alongwith documents Annexure R-3/1 to R-3/4 and closed the evidence.

7.             We have heard the learned counsels for the complainant as well as OP No.3 and gone through the record available on file  including written arguments filed by the complainant, minutely and carefully.

8.             During arguments, the learned counsel for the complainant has reiterated the averments as made in the complaint as also in the affidavit of the complainant(Annexure C-A) and contended that the mobile set in question as purchased by the complainant from OP No.1 was still suffering from the issues like the call recording, the fingerprint, hanging/freezing while charging and heating issues. It was argued that the mobile set was delivered to the OP No.2, which is the authorized service centre of the OP No.3 for the rectification of the defects in the same but the same was returned to him without the rectification of the defects qua call recording, fingerprint, hanging while charging and heating issues etc. The learned counsel argued that OP No.3 i.e. manufacturer was duly apprised about the issues being faced by the complainant in the functioning of the mobile set vide email dated 29.08.2020 but the issues were not resolved and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

9.             On the other hand, the OP No.1 has contested the complaint on the ground that it was not authorized as per terms and conditions of the company to repair or replace the hand set and thus, not liability can be fastened upon it.

 10.           The OP No.2 has failed to file the written statement/reply, despite having taken sufficient time and resultantly, its defence was struck off vide our order dated 09.06.2022 and thus, there is no rebuttal to the contentions of the complainant.

11.            The OP No.3 has contested the complaint by raising preliminary objections as well as on merits. The learned counsel for the OP No.3 has reiterated the averments as made in the written statement as also in affidavit(Annexure R-3/A)and prayed for dismissal of the complaint being frivolous, baseless and meritless. The submissions made by the learned counsel for OP No.3 are summarized as under:-

1. That the complainant has failed to corroborate and substantiate his averments qua the defect in the mobile set by placing expert report as required vide Section 38(2)(c ) of the Consumer Protection Act, 2019 and thus, it has been argued that the complaint deserves outright dismissal. In this regard, the learned counsel has placed reliance upon the order passed by the Hon’ble SCDRC, Uttarakhand in case titled as Hero Moto Corp Ltd. Vs. Gaurav Panday and Anr. in F.A. No.235/2013 decided on 24.04.2015.
2. That the manufacturer is liable as per the terms and conditions of the warranty is liable only to repair or replace the defective parts. The learned counsel contended that the complainant is not entitled any relief beyond the terms and conditions of the warranty. Reliance has been placed on the following case laws:-

1. Stercocraft Vs. Monotype India Ltd. New Delhi(2000), NCJ(SC) 59
2. Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644, at paragraphs 10 & 11

3. Bharathi Knitting Vs. DHL Worldwide(1996) 4 SCC 704

3.         That the mobile set was duly checked by the engineer      of the service centre but no such defect as alleged by the      complainant was found therein. The learned counsel argued that     the engineer had conducted the quality check test of the mobile         set, wherein no defects was found and that as per the quality    check test (Annexure R-3/2) qualifying all the parameters        the    mobile set was found pass. The learned counsel invited our   attention towards the technical report(Annexure R-3/3), wherein     the Manager of authorized service center as remarks that no     defect was found in the mobile set and the same was working   fine.

Thus, the learned counsel has on prayed for dismissal of the present complaint.

12. The aforesaid submissions made by the learned counsel on behalf of the OP No.3 i.e. manufacturer are not tenable. Pertinently, the complainant had faced the issues of malfunctioning of the mobile set in question just within 13 days after purchase on 13.08.2020 from the OP No.1. The issues being faced by the complainant qua its functioning were duly brought in the notice of the OP No.3 (manufacturer) vide email dated 29.08.2020, but the issues remained unresolved. The OP No.3 had deniedthe defects in the mobile set on the basis of qualify check test i.e. QC result and the technical report, which are available on record Annexure R-3/2 and Annexure R-3/3, wherein the mobile set has been reported having no defects in it.

13. absent We have perused the QC result i.e. Annexure 3/2 as well as the technical report(Annexure R-3/3) and find that the same neither bear the signature of any its technical person nor the same is authenticated or attested or certified by the concerned engineer. As per remarks made in the technical report(Annexure R-3/3, the mobile set has been reported having no defects in it but the same is silent qua the name of the engineer or the technical person, who had inspected the mobile set in question and given the said report. In absence of name of the technical person or the engineer, who had inspected the mobile set in question and who had made his remarks, no value/weigh is liable to be attached to the QC result(Annexure R-3/2) and technical report (Annexure R-3/3). Even the Authorized Service Centre i.e. OP No.2, on whose report, the OP No.3 (manufacturer) has based its defence, has preferred not to contest the present complaint by remaining absent.

14. Pertinently, it is pertinent to mention here that the mobile set in question was produced by the complainant before the Commission on 12.08.2024 and we had seen the video on the computer of the Commission by inserting the Pen Drive and found that the mobile set in question was not in order qua its working with regard to finger print sensor and call recording function. Further, the set in question was also found having hanging/freezing issue; thus, there is not even an iota of doubt with regard to the fact that the issues raised by the complainant i.e. call recording, fingerprint sensor, heating and hanging/ freezing issues were not resolved by the OPs. Therefore, we conclude that the OPs No.2 & 3 were deficient, while rendering services to the complainant, for which, they are liable to compensate the complainant. The present complaint is dismissed qua OP No.1.

15. In relief, the complainant has claimed the refund of sum of Rs.32,999/- i.e. cost price of the mobile set in question along with insurance charges as Rs.2,299/- and cost of buy-back charges as Rs.599/-. Further, the compensation of Rs.2,00,000/- and Rs.11,000/- has been claimed on account of physical harassment, mental agony and litigation charges respectively. 

16.            As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP No.3 is directed to refund the cost price i.e. Rs.32,999/- of the mobile set in question to the complainant.
2. The OP No.2 as well as OP No.3 are burdened with a compensation of Rs.10,000/-each (Rs.10000+ 10000) to be paid to the complainant on account of mental agony and  harassment suffered by him.
3. The OP No.2 is further directed to make the payment of Rs.5,500/- to the complainant on account of litigation charges.

17.         The OPs No.2 & 3 shall comply with this order within a period of 45 days from the date of receipt of copy of this order. However, if the order is not complied with by the OP No.3 within 45 days as directed above, then in that eventuality, the OP No.3 shall be liable to pay the interest @9% per annum(simple interest) over the awarded amount i.e. Rs.32,999/ vide para no.16(i) above from the date of this order till its actual realization. Further, the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.2 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:11.11.2024

Dr. Suman Singh            Dr. Sushma Garg            Satpal           

              Member                         Member                 President

Note: Each and every page of this order has been duly signed by me.

                                           Satpal                             

                                         President