Order dictated by:
Sh.S.S.Panesar,President.
- Surinder Kumar complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that he purchased one Samsung Mobile Galaxy AB vide bill No. 4208960575 dated 17.8.2015 from opposite party No.1 for a valuable consideration of Rs. 30,875/-. After three months of purchase, the said mobile became out of order. The complainant approached opposite party No.1 , who referred the complainant to approach opposite party No.2 for its repair. The complainant submitted the mobile for repair for four times, but the same could not be repaired and is still lying there. The complainant approached the opposite party so many times, but to no avail. The complainant has sought for the following reliefs vide instant complaint :-
- Opposite parties be directed to refund the cost of the mobile hand set i.e. Rs. 30875/- alongwith interest or in the alternative to replace the same with new one.
- Compensation to the tune of Rs. 50000/- alongwith cost of litigation may also be awarded to the complainant.
Hence this complaint.
2. Upon notice opposite parties No.1 & 2 did not opt to put in appearance despite service, as such they were ordered to be proceeded against ex-parte.
3. Whereas, opposite party No.3 appeared and contested the complaint and filed written statement taking certain preliminary objections therein inter alia that the complainant is not entitled for any relief as he has concealed the material and true facts from this Forum. The complainant has mishandled the handset leading to the problem of Ringer, Distortion in sound and these problem arose due to mishandling of handset . Till date handset in question has been submitted with opposite party No.2 on 5.2.2016 with problem in ringer, distortion in sound and then on 21.4.2016 with problem in camera which was again due to mishandling. On both the occasions the problem was duly rectified to the satisfaction of the complainant and handset was made OK. Thereafter complainant never approached opposite party No.2 with any problem in the handset ; that the present complaint is liable to be dismissed under section 26 of the Consumer Protection Act as the same is gross abuse of the process of law. No cause of action has arisen to the complainant to file the present complaint. There is no deficiency or service or breach of contract on the part of the answering opposite party; that the complainant has neither any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. report of expert in support of alleged submission as required under law. But no such report has been adduced by the complainant till date before this Forum. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
4. In his bid to prove the case , complainant tendered into evidence his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-11 and closed his evidence.
5. To rebut the aforesaid evidence Mrs.Preeti Mahajan,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Anindya Bose, Deputy General Manager Ex.OP3/1 and closed the evidence on behalf of opposite party No.3.
6. We have heard the complainant and ld.counsel for opposite party No.3 and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of opposite party No.3.
7. On the basis of the evidence, ld.counsel for opposite party No.3 has vehemently contended that it is not disputed that complainant purchased mobile handset make Samsung Galaxy A8 vide bill No. 4208960575 from opposite party No.1 for a sum of Rs. 30,875/- on 17.8.2015, copy of the cash memo/bill accounts for Ex.C-5. It is not disputed that the complainant approached opposite party No.2 for repairing the handset in dispute because it is the case of the complainant that the mobile handset became out of order. But, however, the handset in dispute became out of order due to mishandling of the same by the complainant. The complainant has not adduced on record any expert report to contend that the handset in dispute was suffering from any manufacturing defect. Absolutely there is no deficiency of service or breach of contract on the part of the opposite party No.3 or the manufacturer of the mobile handset in dispute. It is further contended that for proving the manufacturing defect, report of expert is essential. Reliance in this connection has been placed on Sukhwinder Singh Vs. Classic Automobile Shastri Nagar, Jharkhand 2012 NCJ 917(NC) wherein it has been laid down that to prove the manufacturing defect in vehicle a report of expert is essential or some other evidence showing manufacturing defect should have been adduced . Mere fact that the product was taken to the service station for one and two times does not ipso facto proves the manufacturing defect, but the complainant has filed the complaint with malafide intentions to extract money from the replying opposite parties by dragging them in this frivolous and baseless litigation. On the basis of the aforesaid contention, ld.counsel for opposite party No.3 has vehemently contended that the complaint being false and frivolous and may be dismissed against opposite party No.3.
8. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant approached opposite party No.2 for getting the mobile handset in dispute repaired after 3 months of the purchase of the mobile handset. Thereafter on 2/3 occasions, the complainant again approached the opposite party for getting the mobile hand set in dispute repaired and lastly the handset was handed over to opposite party No.2 for repairs on 14.4.2016 and since then the same was lying there awaiting the repair. Copies of the job sheets account for Ex.C-6, Ex.C-8, C-10 and Ex.C-11 . Although the complainant has not been able to prove that the mobile handset in dispute was suffering from some manufacturing defect, yet the mobile handset being within warranty period, the complainant is entitled to repair of the mobile handset in dispute to the satisfaction at the end of opposite party No.2. Opposite party No.2 has been deficient in not providing free service pertaining to repairs of the mobile handset in dispute.
9. Consequently, instant complaint succeeds and opposite party No.2 is directed to repair the mobile handset in dispute to the satisfaction of the complainant without charging any amount within a period of one month of the receipt of copy of the order. The complainant is also awarded Rs. 2000/- as compensation besides cost of litigation are assessed at Rs. 1000/-. If compliance of the order is not made within the stipulated period, awarded amount shall carry interest @ 6% p.a from the date of filing of the complaint until full and final recovery. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated :6.10.2016
/R/
