Haryana

Panchkula

CC/224/2018

RAJESH BURA. - Complainant(s)

Versus

M/S SHREENATH RETAIL. - Opp.Party(s)

RAVINDER KUMAR & SHAMMI SAROHA

08 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                              

Consumer Complaint No	:	224 of 2018
Date of Institution	:	15.11.2018
Date of Decision	:	08.04.2021

 

 

Rajesh Bura, Aged 36 years son of Shri Shish Pal Bura, resident of Flat No.1343, First Floor, Sector-19, Panchkula, Haryana.

 

                                                                                   ….Complainant

Versus

1.      M/s Shreenath Retail, SCF No.216, Motor Market, Manimajra, Chandigarh, through its Proprietor/Partner/Manager/Authorised Signatory.

2.      Mobile Care, SCO No.62, First Floor, MDC, Sector-5, Panchkula (Authorised Service Centre), through its Proprietor/ Partner/ Manager/ Authorized person. 

3.      Samsung India Electronics Pvt. Ltd. 20^th to 24^th Floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana-122202 through its director/chairman.

….Opposite Parties

 

COMPLAINT UNDER SEC. 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr.SushmaGarg, Member.

 

 

For the Parties:    Complainant in person with Sh.Shammi Saroha,  Advocate for complainant.

OP No.1 already ex-parte vide order dated 25.03.2019.

OP No.2 already ex-parte vide order dated 16.05.2019.

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

ORDER

(Sh. Satpal, President)

1.               The brief facts of the present complaint are that the complainant has purchased  a mobile phone of Samsung A-9 Gold bearing IEMI No.352944080914123, vide his EMI Card of Bajaj Finserv Limited and made a payment of Rs.32,490/- vide bill no.SNR-1002 dated 27.12.2016 for his own use. After purchase of said mobile phone, sometime it started creating minor problems.  On 22.01.2018 the mobile handset of the complainant was in his hand and suddenly he got pushed from behind and lost his balance and due to the push he dropped his handset and the screen/touch of the same was broken. He contacted the office of the OP No.2 and informed about the damage in the handset. On this the official of the OP No.2 ask for some time to inform the official of OP No.3. The Official of OP No.2 given an oral estimate of about Rs.9000/- on account of replacement of LCD/Combo for the repair of the handset. The official of OP No.2 told the complainant that he has to repair the handset on his own because the insured period as well as the warranty period was already expired. He given his permission for the same but the official of the OP No.2 further said that the touch screen/combo of the handset is not in stock and he has to call to the bigger customer care centre which is situated at Chandigarh. On the advice of the OP No.2, the complainant  visited the office of Mobile Care, Both No.75, Sector-31-D, Chandigarh, Samsung Mobile Care, SCO No.106, FF, Phase-10, Sector-64, SAS Nagar, Mohali, Sparkle, Sector-22-D, Chandigarh, but all gone in vain as the touch screen/combo of the said mobile was not available even in their stock. He again contacted the official of OP No.2 after the lapse of one month for the repair of the handset but the official of the OP No.2 refused to issue any jobcard/ estimate as the parts are still unavailable in their stock. Lastly, on 06.11.2018, the complainant again visited the office of OP No.2 for the repair of his handset and requested the official of OP No.2 to change the touch screen/combo of his handset or to provide any stepnny handset to him. The official of the OP No.2 said that the OP No.3 has stopped production of the above mentioned handset and spare parts of the same due to which they are unable to repair of the handset of the complainant. Thus, there is deficiency in service on the part of the Ops.  Due to the act and conduct of the OPs, the complainant has suffered financial loss, mental agony and harassment. Hence, the present complaint.

2.               Notices were issued to the OPs No.1 & 2 through registered post (vide registered post No.RH374042553IN on 28.02.2019 and vide registered post No.RH380579947IN on 10.04.2019 respectively) which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.1 & 2; hence, they were deemed to be served and thus, due to non appearance of OPs No.1 & 2, they were proceeded ex-parte by this Forum vide its order dated 25.03.2019 and 16.05.2019 respectively.

                  Upon notice, OP No.3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being frivolous and baseless and no cause of action. On merits, it is stated that as per the warranty terms and conditions; physical damage to the handset is not covered under warranty. The OP No.3 is always ready to provide their best service and ready to repair the handset but on chargeable basis only. It is stated that the parts of the handset are readily available with the ASC of the answering OP and only paid repair to the handset can be done. Had the complainant approved the estimate cost of repair, the handset would have been repaired. But instead of approving the estimate, the complainant was adamant to approach this Hon’ble Forum.  It is further stated that complainant has failed to prove any negligence on the part of the OP No.3 and that as a consequence thereof, loss or injury was suffered by him. Thus, there is no deficiency in service on the part of the OP No.3 and prayed for dismissal of the present complaint.

3.               To prove his case, the complainant has tendered affidavit as Annexure C/A along with document Annexure C-1 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.3 has tendered affidavit Annexure R-3/A along with documents Annexure R3/1 and closed the evidence.

4.               We have heard the learned counsels for complainant and OP No.3 and gone through the record minutely and carefully.

5.               In the present complaint, the complainant has prayed for issuance of direction to Ops to refund the purchase price amounting to Rs.32,490/-of the mobile set in question. The grievances of the complainant against the Ops are on the two counts.

6.               The first grievance is that the OP No.1 sold the set in question to him knowing that the manufacturing as well as supply of its spare parts of the mobile set was going to be stopped by its manufacturer i.e. OP No.3. We do not agree with the complainant in this regard as it is a matter of common knowledge that every manufacturer belonging to IT sector updates its existing version/model by introducing the next version/model with the advancement of the technology in the IT Sector. Hence, no malpractice or unfair trade practice can be attributed either on the seller or the manufacturer i.e. OP No.3 for introducing the next model.

7.               The second grievance is that the OP No.2 has failed to repair the mobile set in question for want of required touch screen or combo in its stock.

8.               The OP No.2 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against him. The non-appearance of the OP No.2 despite notice shows that he has nothing to say in its defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

9.               The OP No.3 in its reply as well as affidavit Annexure R-3/A has stated that parts of the handset were readily available with its service centers Mobile Care, Booth No.75, Sector-31-D, Chandigarh, Samsung Mobile Care, SCO No.106, FF, Phase-10, Sector-64, SAS Nagar, Mohali, Sparkle, Sector-22-D, Chandigarh but the same could be provided only on the payment basis. It is alleged that the complainant did not approve the estimate cost of repair, hence there is no deficiency on its part.

10.             It is contended that the complaint is liable to be dismissed because neither replacement of the product nor refund is permissible as per the terms and conditions of the warranty. The learned counsel vehemently contended that warranty period of the product in question had already expired and that the damages were not covered under the warranty conditions being physically caused to the mobile set. It is further contended that the complainant did not raise any issue with regard to the availability of the spare parts when he approach the service centre on 08.06.2018 vide job sheet (Annexure R-3/1). Reliance has been placed upon the case law titled as Stereocraft Vs. Monotype India Ltd. New Delhi(2000) NCJ(SC)  wherein it is held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period.

11.             The learned counsel has also relied upon the case law titled as Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644, at paragraphs 10 and 11) that where a warranty condition is specifically stated, a contrary implied warranty cannot be imputed. Further, reliance has been placed upon case law titled as Bharathi Knitting Vs. D.H.L. Worldvide, (1996) 4 SCC 704, wherein it is held that in case of specific term in the contract, the parties will be bound by the terms of the contract.

12.             Admittedly, the complainant was ready to get the mobile set repaired on payment basis and in this regard he had given his consent to OP No.2 who had provided a rough cost estimate of about Rs.9,000/- for the replacement of LCD/Combo of the set in question. The complainant has not taken the plea that mobile set was got damaged during its warranty or guaranty period or that it was insured. It is specifically and categorically alleged in Para 6 of the complaint duly corroborated by the corresponding Para of affidavit (Annexure C/A) that the necessary spare parts were not available in stock of OP No.2 which compelled him to visit the Mobile Care, Booth No.75, Sector-31-D, Chandigarh, Samsung Mobile Care, SCO No.106, FF, Phase-10, Sector-64, SAS Nagar, Mohali, Sparkle, Sector-22-D, Chandigarh for obtaining  the necessary touch screen/combo of the mobile set.

13.             Undisputedly, the set in question got damaged beyond the guaranty/warranty period. Further, no manufacturing defect has been alleged in the mobile set. The OP No.2 has not rebutted or controverted the assertions and contentions of the complainant with regard to the non availability of the required spare parts i.e. touch screen/combo of the handset in question in its stock. Even the OP No.3 has not pleaded specifically that the required spare parts were available in the stock of OP No.2 or Mobile Care, Booth No.75, Sector-31-D, Chandigarh, Samsung Mobile Care, SCO No.106, FF, Phase-10, Sector-64, SAS Nagar, Mohali, Sparkle, Sector-22-D, Chandigarh. In our considered opinion, the complainant was made to oscillate between the service center/OP No.2 and other service centers i.e. Mobile Care, Booth No.75, Sector-31-D, Chandigarh, Samsung Mobile Care, SCO No.106, FF, Phase-10, Sector-64, SAS Nagar, Mohali, Sparkle, Sector-22-D, Chandigarh. Had the required been available in the stock of OP No.2, the complainant would not have visited the other aforementioned service centers. Therefore, we have no doubt of any kind in any manner that the complainant was made to move  from pillar  to cost  for procuring  the required spare parts from service centers belonging to OP No.3 but failed to obtain the same. The plea of the OP No.3 that the complainant was not ready to make the payment of rough cost estimate of repair carry no force and substance, in view of the consistent and categorical assertions of  the complainant that he was always ready to get the damaged phone repaired on payment basis. Needless to mention here that no litigant/consumer approaches the court/ Tribunal out of his choice but he is compelled to invoke jurisdiction of the Court/Tribunal only when he gets no response or redressal pertaining to his complaint from the service providers/OPs.       

14.              In the light of the aforesaid discussion, we conclude that OP No.3 has been deficient while rendering services to the complainant, hence, the complainant is entitled to relief. The present complaint is dismissed qua OPs No.1 & 2.

15.             Regarding relief, it is found that that the complainant has used the mobile set for a period of about one year and thus, the  depreciation @ 20% of the purchase price would be just, fair and reasonable. The purchase price of the mobile set is Rs.32,490/-, which comes out to Rs.25,992/- after making deduction @ 20%.

16.             As a sequel to above discussion, we partly allow the present complaint against the OP No.3 with the following directions:-

1. The OP No.3 is directed to refund the amount of Rs.25,992/- after making deduction @20% of the cost price of the mobile set to the complainant subject to submission of the mobile set to OP No.3.
2. To pay an amount of Rs.10,000/-to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,000/- as litigation charges.

 

17.             The Op No.3 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, against the OP No.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:08.04.2021

 

 

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini          Satpal        

               Member                        Member                      President

 

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

 

                                      Satpal,                       

President