DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.

 

Complaint Case No : CC/157/2019

Date of Institution : 26.09.2019

Date of Decision : 25.02.2020

Didar Singh son of Baldev Singh @ Bhola Singh, R/o VPO Bhaini Jassa, Tehsil and District Barnala.                    …Complainant

Versus

1. M/s Rajan Telecom and Computer, Gurudwara Ramsar Road, Dhanaula through its Authorized Signatory.

2. M/s Kamlesh Telecom, Opp. New Bus Stand, Barnala Authorized Service Centre of Samsung Company through its Authorized Signatory.

3. Samsung India Electronics Pvt. Ltd., Corporate Office: 20th to 24th Floor, Two Horizon Centre, Golf Course Road, DLF Phase 5, Sector 43, Gurugram, Haryana-122202.

…Opposite Parties

Complaint Under Section 12 of Consumer Protection Act.

Present: Sh. D.S. Dhaliwal counsel for complainant. 

Opposite parties No. 1 and 2 exparte. 

Sh. Chander Bansal counsel for opposite party No. 3.  

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member 

(ORDER BY KULJIT SINGH, PRESIDENT):

    The complainant namely Didar Singh has filed the present complaint under Section 12 of the Consumer Protection Act 1986 against Rajan Telecom and Computer, Dhanaula and others. (hereinafter referred as opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the complainant had purchased a Samsung A-205 Black 3/32 A-20 mobile having IMEI No. 356926105748871 for an amount of Rs. 11,200/- from the opposite party No. 1 vide invoice No. 170 dated 24.5.2019 who gave guarantee of one year on the said mobile and also assured that in case of any problem they will replace the same with new one. 

3. It is further alleged that after about 10 days from the date of purchase the said mobile phone started giving problems i.e overheat, voice and speaker problem and not working properly. On 10.6.2019 the said mobile became fold due to overheat. On this the complainant approached the opposite party No. 1 and showed the said mobile and requested them to change the said mobile with new one but the opposite party No. 1 told the complainant to approach the opposite party No. 2 who will replace the said defective set. On 13.6.2019 the complainant approached the opposite party No. 2 and showed the said mobile but they started making lame excuses and putting off the matter on one pretext or the other and lastly flatly refused to change the said mobile. They also issued job sheet mentioning that the mobile is out of repair as the same is bend which is not a manufacturing defect and cannot repair under warranty. 

4. It is further alleged that after that the complainant contacted the opposite party No. 3 telephonically and told all the fact but they did not pay any heed towards the request of the complainant. The act of the opposite parties is not only deficiency in service but it is also unfair trade practice on their part. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to give the new mobile set in place of said defective mobile or pay an amount of Rs. 11,200/- being cost of the said mobile set.  

2) To pay Rs. 50,000/- on account of mental tension, agony and  harassment.           

3) To pay Rs. 20,000/- as litigation expenses.

The complainant also filed rejoinder and reiterated the facts as mentioned in the complaint. 

5. The opposite party No. 2 not appeared before this Forum despite service so the opposite party No. 2 was proceeded against exparte vide order dated 1.11.2019. The opposite party No. 1 initially appeared through its Proprietor but later on none appeared on behalf of opposite party No. 1 so the opposite party No. 1 also proceeded against exparte vide order dated 10.1.2020. 

6. However, upon notice of this complaint, the opposite party No. 3 filed written statement taking preliminary objections interalia on the grounds that the complainant is not entitled for any relied as he has concealed the material facts from this Forum. The handset of the complainant is physically mishandled leading to bending of the handset. He submitted his handset with the opposite party No. 2 on 13.6.2019 and reported the problem of bend due to overheating of the handset which it is being used. Opposite party No. 2 checked the handset and found that handset was working properly and no extra heat or overheating was there in the handset. As per the opinion of opposite party No. 2 the handset has bent due to external pressure or force which is physical damage and as per warranty terms and conditions physical damage is not covered under the warranty and repair is to be done on chargeable basis only for which the complainant refused, so the handset returned to the complainant without repair. There is no inherent defect in the handset. Further, the opposite party No. 3 objected the present complaint on the grounds of misjoinder of parties, no jurisdiction and no deficiency in service. Further, the complainant has failed to file any expert report without which claim cannot be allowed. Further, the complainant has no cause of action to file the present complaint. 

7. On merits, the opposite party No. 3 denied for want of knowledge that complainant purchased the Samsung A-20 mobile for Rs. 11,200/- vide invoice dated 24.5.2019 from opposite party No. 1 who gave guarantee of one year of the said mobile. The warranty of one year is subject to terms and conditions of warranty. Rest of the averments of the complaint are denied by the opposite party No. 3. However, it is admitted that complainant approached opposite party No. 2 on 13.6.2019 and showed the bended mobile and asked to replace the same. The opposite party No. 2 got checked the same from the technical Engineer who told that handed has bended due to external pressure or force and not due to alleged overheating. The Engineer of the opposite party No. 2 checked the temperature of the handset while it was being used and the temperature reading of the handset was within normal range so there was no overheating as alleged by the complainant. It is admitted that opposite party No. 2 issued the job sheet with remarks out of repair as the handset is bend and it is not a manufacture fault and not covered under warranty. The complainant refused to get his handset repaired on chargeable basis. Rest of the averments of the complaint are denied by the opposite party No. 3 and lastly prayed for the dismissal of the present complaint against the answering opposite party with costs. 

8. In support of his complaint, complainant tendered into evidence copy of bill Ex.C-1, copy of job sheet Ex.C-2, affidavit of Didar Singh  Ex.C-3, copy of legal notice Ex.C-4, copies of postal receipts Ex.C-5 to Ex.C-7, photographs of mobile Ex.C-8 to Ex.C-10 and closed the evidence.

9. To rebut the case of complainant, opposite party No. 3 tendered in evidence affidavit of Anup Kumar Mathur Ex.OP-3/1, copy of job sheet dated 13.6.2019 Ex.OP-3/2, photographs Ex.OP-3/3, copy of warranty card Ex.OP-3/4, copy of reply dated 9.7.2019 Ex.OP-3/5 and closed the evidence. 

10. We have heard the learned counsel for the parties and have gone through the record.

11. It is not denied by the opposite party No. 3 that the complainant purchased mobile Samsung A20 for Rs. 11,200/- vide invoice dated 24.5.2019 Ex.C-1. It is also admitted by the opposite party No. 3 that the mobile has one year warranty. The complainant deposed in his affidavit Ex.C-3 that his mobile has gone bend and also giving problems i.e. overheat, voice and speaker problem so on 13.6.2019 he approached the opposite party No. 2 to change the same with new one. The complainant proved on the file vide copy of job sheet Ex.C-2 that the opposite party No. 2 has not repaired or replaced the bend and defective mobile and given the remarks that as the set has gone bend which is not a manufacturing defect so it cannot be repaired within warranty.  

12. The main objection of the opposite party No. 3 for not replacing or repairing the mobile set within warranty is that opposite party No. 2 got checked the mobile from the technical Engineer who told that the handset has bended due to external pressure or force and not due to alleged overheating. The Engineer of the opposite party No. 2 checked the temperature reading of the handset was within normal range and there was no occasion for overheating as alleged by the complainant. But to prove all these facts the opposite party No. 2 or its said Engineer who checked the mobile set not appeared before this Forum despite duly served as its office situated at Opposite New Bus Stand, Barnala. There is no meaning of all these facts which have mentioned in the written version of the opposite party No. 3 without any tendering any evidence in support of these facts. Further, the opposite party No. 3 mentioned in their written version that they have ready to repair the mobile of the complainant on chargeable basis. From copy of letter dated 9.7.2019 Ex.OP-3/5 issued by opposite party No. 3 to the counsel for the complainant it is proved on the file that the opposite party No. 3 is ready to repair the mobile set of the complainant on chargeable basis and its costs of repair is Rs. 12,972.74 paise which is more than the  costs of the mobile set amounting to Rs. 11,200/- and this document duly proved the unfair trade practice on the part of the opposite parties. Further, in the terms and conditions of warranty Ex.OP-3/4 the opposite party No. 3 failed to prove on the file that in case the mobile set has gone bend the opposite party No. 3 cannot repair or replace the mobile set within warranty period free of costs. From photographs of mobile set Ex.C-8 to Ex.C-10 and Ex.OP-3/3 it is proved on the file that the mobile of the complainant is actually bend which cannot be due to mishandling. The opposite party No. 3 not filed any guidelines/instructions of the opposite parties that the handset made by the opposite party not bend due to overheating.  

13. The Hon'ble National Commission, New Delhi in case titled MG Electronics Versus Sham Nandlal Sharma (Dec.) Through Lrs. And another reported in II (2018) CPJ-239 (NC) held as under.-

“Consumer Protection Act, 1986- Sections 2(1)(f), 2(1)(g), 21 (b)- Computer-Defects-Repair not done-Deficiency in service- District Forum partly allowed complaint-State Commission dismissed appeals-Hence revision-Documentary evidence proves that complainant purchased computer from Ops and said computer started giving problems, only after short period of purchase-Entire material place on record including written arguments filed by Ops does not indicate anywhere whether Ops took any steps to carry out repairs in said computer and supply same in defect-free condition to complainant-Powers in exercise of revisional jurisdiction should be used only, if there is a material defect or jurisdictional error in orders passed by Consumer Fora below-Impugned order upheld.”

Further in this citation in para No. 8 it is mentioned that; The consumer complaint in question had earlier been decided exparte against both the opposite parties by the District Forum vide order dated 30.10.2000. However, in appeal before the State Commission, the said order was set aside and the case was remanded to the District Forum vide order dated 19.6.2008 for a decision afresh. In the order passed by the District Forum on 12.9.2008, both the opposite parties have been jointly and severally held liable to pay the price of the computer i.e. Rs. 87,040/- alongwith interest @ 9% per annum from 20.4.1998 till realization. A perusal of the copies of the documents placed on record in this revision petition shows that the OP-2 Capgun Exim sent letter dated 20.4.1998 to the Janta Commercial Bank, Akola saying that the complainant Sham Nandlal Sharma had purchased a Note Book Computer through M/s MG Electronics i.e OP-1. The said computer had some hardware and functional problems during operations and the machine was with them for further repairs. It is evident from this letter that the said computer was duly purchased by the complainant and the same had been lying with the OP-2 for repairs. Another letter dated 28.4.1998, sent by the OP-2, addressed to the OP-1 has been placed on record, in which it has been stated that the said computer had been sold to OP-2 by OP-1. It was also stated that as soon as the repair was completed, the machine was handed over to the complainant. On record, is the copy of quotation dated 1.1.1998, in which it has been stated that the warranty period for the computer was one year. A copy of bill No. 576 dated 24.2.1998 in favour of the complainant has also been placed on record, as per which the computer was sold by the petitioner/OP-1 to the complainant for a sum of Rs. 87,040/-. It is made out from this entire documentary evidence that the complainant did purchase the computer in question from the Ops and the said computer started giving problems, only after a short period of purchase. Whether the said computer was purchased directly from the OP-2 or the purchase was affected through OP-1, it was the duty of the Ops to have ensured that the defects in the computer were got removed. The entire material placed on record including the written arguments filed by the Ops does not indicate anywhere whether the Ops took any steps to carry out the repairs in the said computer and supply the same in a defect free condition to the complainant. We have, therefore, no reason to disagree with the findings given by the District Forum, duly affirmed by the State Commission. Accordingly, we do not find any infirmity, illegality or jurisdictional error in the orders passed by the Consumer Fora below. Moreover, it is a settled legal proposition that the powers in the exercise of the revisional jurisdiction should be used only, if there is a material defect or jurisdictional error in the orders passed by the Consumer Fora below. Under these circumstances, this revision petition is ordered to be dismissed in limine and the orders passed by the Consumer Fora below are upheld. There shall be no order as to costs. 

This citation of Hon'ble National Commission is fully applicable to the facts of present case, as in the present case also the mobile of complainant was got defective only after short period of purchase within warranty period and opposite parties have not taken any step to repair the same free of costs within warranty period rather refused to repair or replace the same within warranty period, so there is deficiency in service and unfair trade practice on the part of opposite parties.

14. Further, an application is also pending for disposal for appointment of an independent duly qualified expert to examine the mobile handset of the complainant. This application is also filed with the affidavit of Deepak Kumar Manager of Kamlesh Telecom authorized service centre for opposite party No. 3 at Barnala. The complainant also filed reply and ready to check his mobile phone from any expert except the expert of the opposite party company. But in our view as the defect in the mobile phone is seen with the naked eye in the photographs Ex.C-8 to Ex.C-10 and it is also proved that the mobile is within the warranty period so there is no need to examine any expert and this application has no merit and same is dismissed.

15. As a result of above discussion, present complaint is allowed. As this model of mobile is having a manufacturing defect so there is no benefit to complainant if we order to replace the defective mobile handset with new one. Accordingly, opposite parties are directed to refund the price of the mobile handset i.e. Rs. 11,200/- to the complainant and to pay Rs. 5,000/- to the complainant as consolidated amount of compensation on account of mental tension, harassment and litigation expenses. The opposite parties are also directed to deposit Rs. 2,000/- as costs in the Consumer Legal Aid Account maintained by this Forum. The opposite parties jointly and severally liable to comply with the above mentioned order. Compliance of order be made within the period of 30 days from the date of receipt of the copy of this order, failing which the opposite parties are directed to pay the above mentioned amount of Rs. 11,200/- which is the costs of the mobile set to the complainant alongwith interest at the rate of 6% per annum from the date of order till actual realization. Copy of the order be supplied to the parties free of costs. File be consigned to records after its due compliance.

ANNOUNCED IN THE OPEN FORUM:

  25th Day of February 2020

 

 

            (Kuljit Singh)

            President

 

            (Tejinder Singh Bhangu)

Member