BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.45/2017.
Date of Instt.: 22.02.2017.
Date of Decision: 03.08.2017.
Surender Kumar son of Sheri Anoop Singh, resident of Bhattu Mandi, Tehsi & District Fatehabad.
..Complainant
Versus
1. M/s Shri Ram Mobile Point, Bhattu Mandi, Tehsil & District Fatehabad through its proprietor.
2. M/s Mobile Solutions, Palika Bazar, Tehsil and District Fatehabad through it proprietor/Partner.
3. Samsung India Electronics Pvt. Ltd. 2nd to 4th floor, Tower-C, Vipul Tech Square, Sector 43, DLF Golf Course Road, Gurgaon -122002 through its Authorized Signatory.
..Opposite Parties.
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Sh.Devender Kaswan Adv. for the complainant
Sh. V.K.Mahiya, Advocate for opposite party No.1.
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 had purchased a mobile of Samsung company model J2(2016) bearing IMEI No.352801084125348 for a sum of Rs.9,700/- vide invoice No.2587 on 18.11.2016 from opposite party no.1against one year complete warranty of the mobile. After two months the mobile became dead and the same was not getting start. The complainant approached OP no.1 and narrated the said problem. OP No.1 gave the address of OP No.2 i.e. authorized Care/Service Centre to remove all the problems under warranty. On 01.02.2017 complainant approached the OP No.2 to remove the all problems by showing the bill to prove that the mobile is under warranty. After checking, the mechanic of OP No.2 told him that there is a major defect in mobile and asked him to come after 3-4 days. After passing 3-4 days when the complainant visited the office of OP No.2, he told the complainant that the display of the mobile has become out of order and for repairing this problem he will have to pay a sum of Rs.4500/-. Upon this complainant told that the mobile in under warranty but the OP No.2 did not give any satisfactory reply and returned the mobile in question to the complainant along with job sheet. The complainant requested the Ops to replace the set with a new one or to return the original cost of the mobile along-with interest @ 18% per annum from the date of purchase of mobile, but the OPs first of all went on avoiding the matter on one pretext or the other and now two days back OPs have flatly refused to do so. The act and conduct of Ops clearly amounts to deficiency in service. Hence, this complaint.
3. Upon notice, Ops appeared and contested the complaint by filing separate replies. OP No.1 in his reply has submitted that the Mobile set was sold to the complainant in a sealed condition after purchasing from authorized distributor and after selling the same it is not liable for anything as all the responsibilities and liabilities are of Ops No.2 & 3. Objections about cause of action, locus standi, suppression of material facts form this Forum, present complaint has been filed just to harass and humiliate the OP No.1 have been taken.
4. In reply, OPs No.2 and 3 has 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 without any merit. Further, the complainant has failed to prove the manufacturing/technical fault in the mobile as there is no analysis/technical report on the file.
5. OPs No.2 and 3 further submitted that Hon’ble Supreme Court in GHAZIABAD DEVELOPMENT AUTHORITY Vs. Union of India, (2000) 6SCC 113 that no damages are payable for mental agony in case of breach of ordinary commercial contract.
6. It is further submitted that the complainant approached the OPs/Service Centre vide complaint No.4230077522 on 01.02.2017 and reported some issue in display of the said unit. Pursuant to the said complaint, mobile in question was checked by engineer of the OPs in presence of complainant. Upon examination it found physically damaged due to mishandling/misuse of the handset on the part of the complainant. The complainant was informed about this fact. The complainant was further informed that on account of physical damage, warranty of said handset had become void and thus any repairs would be done on chargeable basis only as per terms and of warranty policy and accordingly an estimate of repairs was provided to complainant but the complainant did not approve the estimate of repair and started demanding free of cost repair/replacement for his unit. It is also submitted that the OPs were always and are still ready to provide service to complainant regarding the unit in question as per warranty policy. Copy of warranty policy is Annexure R1. Warranty means in case of any problem with the unit on account of manufacturing defect or faulty workmanship, the unit will be repaired or it part will be replaced as per warranty policy. Warranty of the unit is subject to some conditions and the warranty of the unit becomes void in the following conditions:
- Liquid Logged/Water logging.
- Physically Damage.
- Serial no. Missing
- Tampering.
- Mishandling/Burnt etc.
7. It is also further submitted that the OPs always are ready to repair the mobile as per warranty policy, but the complainant is not ready to get repaired his mobile as per conditions of warrant, so there is not deficiency on the part of OPs. The OPs further relied upon the law laid down by National Commission in case title as 2006(1) CLT 527 (NC) Titled as Shiv Parsad Paper Industries Vs.Seniior Machinery Company, wherein it has held that “An Equipment or machinery cannot be ordered to be replaced if can be repaired”. Further in M.J. Abraham Vs. Angel Agencies & Ors 1999(1) CPR 20 it has been held by the Commission that for replacement of product the defect must be manufacturing and for proving manufacturing defects EXPERT REPORT is essential.
In evidence, the complainant has tendered his affidavit as Annexure C1 and documents as Annexure C2 & Annexure C3 whereas the Ops have tendered affidavit as Annexure RW1/A and document as Annexure R1.
8. We have heard learned counsel for the complainant and learned counsel for the opposite parties and have perused the case file carefully.
9. Purchasing of mobile by the complainant from OP No.1 is not disputed. According to the complainant after two months of its purchase, the mobile started creating problems and due to this it was deposited on 01.02.2017 with the OP No.2 as is evident through Annexure.C2 (job sheet). OPs 2 and 3 informed the complainant that the display of the mobile has become out of order and for repairing this problem he will have to pay a sum of Rs.4500/-. Upon this complainant told that the mobile in under warranty but the OP No.2 did not give any satisfactory reply and returned the mobile in question to the complainant along with job sheet. The complainant requested the Ops to replace the set with new one or to return the original cost of the mobile alongwith interest @ 18% per annum from the date of purchase of mobile, but the OPs first of all went on avoiding the matter on one pretext or the other and now two days back OPs have flatly refused to do so. The grievance of the complainant is that during warranty period, he had to visit service centre time and again causing mental agony, harassment and wastage of time. The Ops No.2 & 3 have come with the plea that the unit was physically damaged by the complainant and as such the same was not covered under the warranty. Therefore, the repair of the mobile was to be done on chargeable basis. However, there is document on the file to prove that the unit in dispute was physically damaged or mishandled by the complainant. therefore, the plea taken by the OPs is not enough to fetch anything favourable to them because the complainant has specifically pleaded that the mobile set is not working properly and when his grievance is not redressed then he knocked at the door of this Forum by way of this complaint filed on 22.02.2017. This fact is not disputed that time and again the complainant had visited the service centre and the plea regarding depositing of mobile set with the OP No.3 for many days is also not rebutted by the Ops, therefore, the plea taken by the Ops that there is no manufacturing defect in the set is not tenable because it is misconceived notion that any goods can be ordered to be replaced or the cost can be ordered to be refunded only if it suffers from manufacturing defect. There is no such concept of goods suffering from manufacturing defect enshrined by the provision of Consumer Protection Act. 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 mobile 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. On this point, reliance can be taken from case law titled as Tata Motors Vs. Rajesh Tyagi and others I (2014) CPJ 132 (NC).
10. The complainant has purchased the mobile from OP No.1, manufactured by OP No.2 and the OP No.3 is service centre, therefore, the plea taken by the OP No.1 that after selling of the mobile the responsibilities lies with Ops No.2 & 3 is not disputed. The Ops are not running any charitable trust and their acts are clearly on professional basis to earn profit, therefore, Ops No.2 and 3 are held liable for the deficiency in service. The Ops No.2 & 3 place reliance various citations in support of their pleadings but that are not fully applicable here as facts of the present complaint are different to that of cases. The complaint against Op No.1 is dismissed as the complainant has failed to prove any deficiency on the part of OP No.1.
11. Keeping in view the facts and circumstances of the present case, we are of the view that interest of justice would be met if the opposite parties no.2 & 3 are ordered to replace the mobile in dispute with fresh one of the same modal or same value within one month. We order accordingly, failing which the complainant shall at liberty to invoke the jurisdiction of this Forum u/s 25 & 27 of the CP Act. Copy of the order be supplied to both the parties free of costs as provided under the rules. File be consigned be to the records after due compliance.
Announced in open Forum. Dated:03.08.2017
Raghbir Singh ( R. S Panghal ) (Ansuya Bishnoi)
President District Consumer Member Member
Disputes Redressal Forum
Fatehabad.
