BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.

Complaint Case No.104/2015.

Date of Instt.: 01.07.2015.

Date of Decision: 28.12.2016.

Rajesh Soni son of Shri Ranjeet Singh resident of Thakar Basti, Fatehabad Tehsil & District Fatehabad.

..Complainant

     Versus

1.M/s R.K.Stickers & Car Accessories, Palika Bazar, Fatehabad Tehsil & District Fatehabad through its proprietor.

2. M/s Mobile Solutions, Palika Bazar, Backside of Topshop Mobiles, Fatehabad Tehsil & District Fatehabad through its Proprietor/Partner.

3.Samsung India Electronics Pvt. Limited Suites No.101-103, First Floor, Copia Corporate, Suites, Plot No.9, Jasofa District center, New Delhi through its Authirsed signatory.

..Opposite Parties.

Before:       Sh.Raghbir Singh, President.

                   Smt. Ansuya Bishnoi, Member.  

Present:       Sh. R,K,Verma, Advocate for complainant.

                   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.

2.                  Brief facts of the present complaint are that complainant purchased a mobile of Samsung company model Galaxy N-915G bearing IMEI No.357088060063942 for a sum of Rs.64,500/- vide Bill No.601 dated 23.03.2015 from opposite party no.1. One year complete warranty of the mobile was given to the complainant. After few days, the mobile developed problems in its touch besides occurring of one dot on the same. The complainant approached OP no.1 and narrated the said problem but it asked that all responsibilities are of service centre; therefore, he went to OP No.2 who after checking told that there is manufacturing defect in the mobile but in the job sheet it was intentionally shown the defect in the mobile is of liquid damage and refused to repair/replace the mobile in question. OP No.1 also told the complainant that due to the dot the touch of the mobile is not working. The complainant also requested the OP No.2 for replacement of the mobile by preparing D.O. The Ops have not paid any heed to the genuine requests of the complainant as they have not replaced the mobile in question despite manufacturing defect in it. 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 C3.

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. The warranty on the mobile phone was subject to certain terms and conditions. There is clear cut sign of liquid ingression in the mobile and the said fault has occurred due to own fault of the complainant. It is denied that service engineers have refused to repair the mobile phone. Liquid ingression of the mobile phone is not covered under the warranty terms and conditions.  OP No.2 is always ready and willing to serve the complainant and repair the mobile with respect to alleged defect. The present complaint has been filed just to secure illegal and unlawful gains from the Ops No.2 & 3. 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 Annexure RW1 and Mark A.

5.                We have heard learned counsel for the complainant and learned counsel for the opposite parties No.2 & 3 and have perused the case file carefully.

6.                During the proceedings of this case, on the application of the complainant expert opinion was sought qua liquid damage of the mobile. The expert had given his report dated 04.08.2016 but learned counsel for the OPs No.2 & 3 filed his objections agianst the report made by expert on the ground that no prior notice was given to the OPs No.2 & 3 before inspection of the mobile in question. Thereafter, court notice was issued to the expert, who appeared before this Forum but failed to explain whether the mobile had been inspected as per the directions of this Forum or not. Moreso, perusal of the same reveals that it has not been made as per the directions of this Forum because the mobile in question was ordered to be inspected in the presence of the parties by giving prior notice but the expert had not issued any prior notice to the OPs No.2 & 3, therefore, the report made by the expert is not being read and is distinguished.

7.                          Learned counsel for the complainant has argued that the mobile in question went out of order within three months of its purchase and the OPs have failed to redress the grievance of the complainant and also failed to return the cost thereof.  On the other hand, learned counsel for the OPs No.2 & 3 has argued that warranty on the mobile phone was subject to certain terms and conditions but in the present case there is clear cut sign of liquid ingression in the mobile and the said fault has occurred due to own fault of the complainant and further the liquid ingression of the mobile phone is not covered under the warranty terms and conditions. Learned counsel for the OPs No.2 & 3 has argued that there is no manufacturing defect in the mobile and mishandling the mobile by the complainant himself cannot attribute manufacturing defect in the unit. On this point he placed reliance of case law titled as Suresh Chand Jain Vs. Service Engineer and Sales Supervisor MRF Limited & Others 1(2011) CPJ 63.

8.                 Purchasing of mobile by the complainant from OP No.1 on 23.03.2015 (Annexure C-2) is not disputed. It is also not disputed that the mobile went out of order and vide job sheet dated 17.06.2015 the reason for the same has been shown as Liquid damage. Learned counsel for the appearing OPs has contended that the above said damage has occurred due to mishandling of the mobile by the complainant but it is strange that nothing has been produced on the file to show that how the OPs No.2 & 3 have come to the conclusion that the complainant has mishandled the mobile phone in question. Mere allegations without concrete evidence do not enough to fetch any score in favour of the OPs No.2 & 3.  On this point reliance can be taken from case law titled as Vinod Kumar Versus Punjab State Electricity Board & Ors. III (2011) CPJ 194 (NC). In such like cases job sheet is very crucial document but it is worthwhile to mention here that the job sheet has been issued by the service centre which is directly relatedto the company and follows the rules and regulations prepared by it, therefore, there is possibility that the job sheet might have been issued as per the instructions of the company.  Another surprising factor which this Forum has noticed that all the particulars have been mentioned in a computerized generated paper but in the column of description only “Liquid damage” by showing the status “out of warranty” has been written by hand, therefore, it can be easily said that the OPs No.2 & 3 are trying to avoid its liability qua the unit in question. The service centre and manufacturer are not supposed to earn profit from the customers and they cannot be permitted to defeat the benevolent provisions of the CP Act because after sale of the product it remains their duty to redress the grievance of the customer but in the present case the appearing Ops have failed to do so. On this point reliance can be given from case law titled as Nishad Nagesh Kulkarni Versus Sony India Pvt. Ltd. & ors. I (2016) CPJ 584 (NC). Moreso, Consumer Protection Act only defines the word ‘defect’ by way of Section 2 (1) (f) of the Act which is to the following effect:

“Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods.”

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 or hardship for few months or a year and if he had to take the product time and again to the service centre for removing one defect or the other, he suffers immensely in terms of loss of time, loss of business, physical discomfort and emotional sufferings having not reaped the fruits of paying heavy amount of purchasing a new mobile.  In the present case, it is proved on record that the mobile in question went out of order during warranty  within three months of its purchase and defects could not be removed by the appearing opposite parties. The complainant has been deprived from using the mobile despite the fact that he has invested huge amount of Rs.64500/- for purchasing the product in question. The case law relied upon by the learned counsel for the appearing OPs  is not helpful to the case in hand, therefore, the same is being distinguished. 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 after deducting 10 % from that amount as the complainant has used the mobile in question for almost three months 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:28.12.2016

                                                                                                                   (Ansuya Bishnoi)                              (Raghbir Singh)                                      Member                                            President                                                                                                     District Consumer Disputes                                                                         Redressal, Forum, Fatehabad.