Amit filed a consumer case on 14 Nov 2024 against M/s Shivam Communication in the Karnal Consumer Court. The case no is CC/445/2023 and the judgment uploaded on 21 Nov 2024.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.
Complaint No.445 of 2023
Date of instt 07.08.2023
Date of Decision: 14.11.2024
Amit resident of village Baragaon Tehsil and District Karnal, proprietor of Welcome Homes, shop no.708, 1st floor, near Tata Primanti, SPR, Sector-72, Gurugram. Aadhar no.3315 6395 5539.
…….Complainant.
Versus
…..Opposite Parties.
Complaint under Section 35 of Consumer Protection Act, 2019.
Before Shri Jaswant Singh……President.
Ms. Neeru Agarwal…….Member
Ms. Sarvjeet Kaur…..Member
Argued by: Sh. Sukhdev Sharma, counsel for the complainant.
OPs no.1 and 2 exparte, vide order Dt.16.10.2023.
Shri Dheeraj Sachdeva, counsel for the OP no.3.
(Jaswant Singh, President)
ORDER:
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased one Samsung S-23 8/128 phone bearing no.351824510147513/1 from the OP no.1, amounting to Rs.59500/-, vide invoice dated 03.04.2023. The said mobile was manufactured by OP no.3. On 12.06.2023, the aforesaid mobile started giving display problem as well as heating problem, then on 13.06.2023, he took his aforesaid mobile phone with the OP no.2 and then the OP no.2 resolved the said problem in the mobile phone and assured that now same is alright and it will not gave the same problem again. After few days, the said mobile phone started giving same problem of heating, display blank some time and hanging of handset, he again went to OP no.2 on 29.07.2023 and requested for removing the said problems or to replace the mobile phone. The OP no.2 after checking the mobile phone, stated that there is manufacturing defect in the display of mobile phone and said display is required to be replaced. The said mobile phone is still under the warranty and they should replace the same but the OP no.2 demanded the cost of display plus labourer charges then the complainant told when the mobile phone is still under warranty, thus he will not pay the said charges, then the OP no.2 refused to repair or replace the said mobile phone. All the facts mentioned above clearly goes to prove that the OPs have supplied defective mobile phone to the complainant and further has not replaced the same inspite of the fact that said mobile phone is within warranty period. Due to the said act and conduct of OPs, complainant has suffered mental pain, agony and harassment. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.
2. On notice, OPs no.1 and 2 did not appear despite service and opted to be proceeded against exparte, vide order dated 16.10.2023 of the Commission.
3. OP no.3 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that defect cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same. It is the settled proposition of law that an expert opinion/cogent evidence is mandatory under section 38(2) of Consumer Protection Act, 2019 to prove the allegations/averments made by complainant. The complainant has miserably failed to prove the alleged manufacturing/technical fault neither placed on record any analysis test report before the Commission and in the absence of any technical report, the complaint deserves to be dismissed. It is further pleaded that there is no defect found in the unit and the same has been found absolutely fine. Without any evidence or any expert report, the complainant has made false allegations. It is further pleaded that complainant with regards to the alleged heating issue in his unit, has approach to the company Service Centre on 29.07.2023. The product in question has been purchased on 03.04.2023 and till date 29.07.2023, no issue has been ever reported by the complainant, and on that occasion the unit of the complainant has been duly checked by the service centre of the OP and the unit has found working perfectly fine. There has been no defect found in the unit. The complainant has made a false story and just only to create evidence by way of job sheet. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint
4. Parties then led their respective evidence.
5. Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of invoice Ex.C1, copy of customer form Ex.C2, copy of service request Ex.C3, copy of Samsung Support SMS copy Ex.C4, copy of support SMS Ex.C5 and closed the evidence on 02.05.2024 by suffering separate statement.
6. On the other hand, learned counsel for the OP no.3 has tendered into evidence affidavit of Sandeep Sahijwani Ex.OPW3/A, copy of warranty policy Ex.OP3/1, copy of job sheet dated 29.07.2023 Ex.OP3/2 and closed the evidence on 29.08.2024 by suffering separate statement.
7. We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.
8. Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that on 03.04.2023, complainant purchased a mobile phone from the OP no.1 with the warranty of one year. After sometimes of its purchase, it created display problem as well as heating problem. The complainant requested the OPs several times from 12.06.2023 to 29.07.2023 for rectification the said defects but OPs failed to do so. The said mobile phone was having manufacturing defect. Complainant requested the OPs several times to replace the said mobile phone or to refund its cost but OPs did not do so and lastly prayed for allowing the complaint.
9. Per contra, learned counsel for the OP No.3, while reiterating the contents of written version, has vehemently argued that on 29.07.2023, complainant approached to the OP with regard to the heating issue in his unit. The mobile phone has been purchased by the complainant on 03.04.2023 and till 29.07.2023, no issue reported by the complainant. OP checked the mobile phone and found working perfectly. He further argued that in the absence of any expert report, complainant miserably failed to prove on record any manufacturing defect in the mobile phone in question and lastly prayed for dismissal of the complaint.
10. We have duly considered the rival contentions of the parties.
11. Admittedly, on 03.04.2023, the complainant purchased a mobile phone amounting to Rs.59,500/- from the OP no.1. It is also admitted that defect occurred during the warranty period.
12. Complainant has alleged that on 03.04.2023, he purchased a mobile phone from the OP no.1 for an amount Rs.59,500/-. The said mobile phone created display and heating problem during the warranty period. The onus to prove his version was relied upon the complainant. To prove his version complainant has placed on file copy of invoice Ex.C1, copy of customer form Ex.C2, copy of service request Ex.C3, copy of Samsung Support SMS Ex.C4 and copy of support SMS Ex.C5. It has been proved from the abovesaid documents, the mobile phone was having defect from the very beginning and complainant approached the OPs several times to rectify the defect during the warranty period but OPs failed to rectify the defect. It is the duty of the OPs either to repair the mobile phone in question during warranty period or to replace the same but OPs did not do so. Moreover, OPs no.1 and 2 despite service did not appear and opted to be proceeded exparte. Hence, the evidence produced by the complainant goes unchallenged and unrebutted and there is no reason to disbelieve the same. Thus, the act of the OPs amounts to deficiency in service and unfair trade practice
13. During the course of arguments, learned counsel for the complainant submits that due to compelling circumstances, complainant has purchased a new mobile phone, so he wants to refund the cost of the mobile phone.
14. As per the invoice Ex.C1, the complainant had purchased mobile set in question for an amount of Rs.59,500/-, hence, the complainant is entitled for refund of the said amount alongwith compensation for mental pain, agony and harassment and litigation expenses, etc.
15. Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.59,500/- as cost of the mobile set in question to the complainant. We further direct the OPs to pay Rs.5,000/- to the complainant on account of mental, pain agony and harassment and towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The complainant is also directed to return the mobile set in question alongwith accessories to the OPs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Dated: 14.11.2024
President,
District Consumer Disputes
Redressal Commission, Karnal
(Neeru Agarwal) (Sarvjeet Kaur)
Member Member
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