BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE URBAN

21^st DAY OF SEPTEMBER 2015

               PRESENT:- SRI. P.V SINGRI                      PRESIDENT

                                SMT. M. YASHODHAMMA        MEMBER

     SMT. P.K SHANTHA                 MEMBER

                  O R D E R

SMT. M. YASHODHAMMA, MEMBER              

This is a complaint filed U/s.12 of the Consumer Protection Act, 1986 praying for an order against OP to replace mobile phone Samsung Galaxy I 9500 S4 or in alternative to refund Rs.41,799/-, compensation of Rs.20,000/- and cost on the allegations of deficiency in service.

2. The brief averments made in the complaint are as follows:

OP-1 is the dealer.  OP-2 is a manufacturer.  OP-3 is a authorized service centre.  Complainant is a legal consultant.  On 18.06.2013 complainant visited OP-1 who is a dealer of different brands of mobile phones.  Upon the requirements of complainant, representative of OP-1 suggested a Samsung Galaxy S4 model vouching for its impeccable quality and smart features.  Impressed by the same, complainant purchased Samsung Galaxy Handset I 9500 Galaxy S4 white bearing IMEI No.355167056481003 along with accessories for Rs.41,799/-.  OP-1 issued the invoice dated 18.06.2013 with one year warranty.  Right from the day one handset was giving trouble.  Hence, complainant took the handset to OP-1 on the 2^nd day itself.  With the problems of call drops, battery does not hold power for long period, motion sensor not working, air gesture not working and handset automatically reboots etc.  OP-1 assured that problems would be solved once the mobile settings are done.  When problems persisted complainant took the handset again to OP-1, who has informed that problems are due to network issue.  Complainant removed the sim card and used it with her old handset and there was no issue related to call drops etc.  The problems started recurring after inserting sim into Samsung handset.  Again complainant visited OP-1, who was in turn informed the complainant that handset would work only with 3G sim card.  The complainant already using a 3G sim card from Bharathi Airtel.  Being unhappy with repeated visits, waste of time complainant demanded for refund.  OP-1 replied that handset once sold cannot be replaced and it was complainant’s bad luck for having received defective handset.  On 03.08.2013 complainant approached OP-1 for repairs or replacement since same is under warranty.  OP-1 asked her to hand over the phone.  On 05.08.2013 handset was returned assuring that the defects were rectified.  OP-1 has returned the handset after retaining for two days and problems continued to persist.  On 14.08.2013 OP-1 directed the complainant to approach OP-3 authorized service centre, handset was handed over to OP-3 and returned on 16.08.2013 stating defects cannot be rectified.  Complainant demanded for refund of amount paid.  OP-3 replied stating as per company policy handset sold cannot be replaced with a new one under any circumstances.  Hence, complainant got issued legal notice dated 03.09.2013 calling upon OPs.1 to 3 either to replace or refund the amount paid within 7 days failing which she sill approach Consumer Forum for appropriate relief.  Notices are duly served to OPs.1 & 2 and notice of OP-3 returned as insufficient address.  OP-2 gave untenable reply.  Complainant put to mental agony and harassment.  Complainant being a legal consultant could not interact with her clients through phone, internet and e-mails when she is away from her office.  Hence, complainant felt deficiency in service and has come up with the present complaint.

3. On appearance, OP-1 filed version contending that complainant purchased Samsung Grand mobile handset from this OP-1 on 18.06.2013 by paying Rs.41,799/-.  OP-1 is a dealer of various mobile companies.  OP-1 admits that long back complainant approached this OP stating handset not working and got it repaired.  OP denied the allegations such as OP refused to replace the new handset and gave evasive answer.  Complainant is called upon to substantiate the allegation by producing convincing evidence.  OP-1 is only a dealer and has been made unnecessary party to this proceeding.  OP-2 is only the necessary party to the proceedings.  There is no cause of action and complaint is devoid of merits.  OP-1 is not liable to pay Rs.61,799/- as claimed by complainant.  There is no deficiency of service on the part of OP-1.  Hence, prayed to dismiss the complaint with exemplary costs.

4. On appearance, OP-2 filed version contending that there is no defect in the product as alleged hence complainant is not entitled for any of relief claimed.  OP-2 denied that handset had 5 types of problems.  As per the dealer only 3 issues involved in the handset.  Complainant failed to produce any credible evidence to substantiate her contention.  As per records, complainant approached service centre only once.  In M.J Abraham Vs Angel Agencies & Another III (2000) CPJ 544 and M/s. Videocon International Ltd., Vs K.Vijayan and others 1999 (1) CPR 20, it has been held that for replacement of product, defect must be manufacturing and expert report is mandatory and handset is not having any manufacturing defect till date.  Hence payment of cost or refund does not arise.  Hence OP-2 prayed to dismiss the complaint with exemplary cost.

  5.  After registration of the complaint, notice is sent to OP-3 by RPAD.  Inspite of service of notice, OP-3 remained absent and failed to represent the case.  Hence, OP-3 has been placed ex-parte.  

  6. So from the averments of the complaint of the complainant and version of Opposite Parties.1 & 2 the following points arises for our consideration as under:

7. Our answer to the following points:

REASONS

8. So as to prove the case Jessie Thomas who being the complainant has filed her affidavit by way of evidence and produced documents.  On the other hand M.Mithun, Customer Relating Manager of OP-1 filed his affidavit by way of evidence in support of the defence version.  Srinivas Joshi, Senior Manager of OP-2 filed affidavit evidence in support of its defence version.  OPs.1 & 2 have not produced any documents.  Complainant filed written arguments.  Heard oral arguments of complainant and OP-1.  Arguments of OP-2 taken as heard.  We have gone through the oral and documentary evidence of both sides meticulously.

9. Smt.Jessie Thomas, who being complainant has filed her affidavit evidence in support of the complaint averments stating she being a Legal Consultant was on the lookout of a smart phone which would suit to her requirements of making/receiving voice calls as well as access data facilities like internet, email etc.  In order to enable her to provide effective and immediate solutions to her clients.  On 18.06.2013 complainant visited OP-1 upon enquiry she purchased Samsung Galaxy handset I 9500 S4 white bearing IMEI No.355167056481003 by paying Rs.41,799/-.  OP-1 issued invoice dated 18.06.2013 with one year warranty.  Right from the day one the handset was giving trouble.  Complainant took the handset to OP-1 with following defects (1) call drops, handset automatically reboots, battery does not hold power for long period.  The motion sensor feature was not at all working.  OP-1 assured her that the problems would be solved but the problems continued to persist.  Hence, she took the handset to OP-1 again he informed that problem is due to network issue.  She removed SIM card from Samsung Galaxy and used with her old handset and there was no issue related to call drops etc., problems started recurring after inserting the SIM into the Samsung Galaxy.  Again she met OP-1 who informed that handset would work only with 3G SIM card inspite of she is already using 3G SIM card from Bharti Airtel.  On 03.08.2013 complainant demanded for replacement or refund since the handset is under warranty.  OP-1 asked the complainant to handover the instrument for service on 03.08.2013.  OP-1 returned the handset after two days stating defects had been rectified but the problems continued to persist.  On 14.08.2013 complainant approached OP-1, who directed the complainant to approach OP-3 who is authorized service centre.  OP-3 returned the handset on 16.08.2013 stating defects cannot be rectified.  Hence, complainant got issued legal notice dated 03.09.2013 calling upon OPs to replace the handset or to refund the amount within 7 days.  OP-2 gave untenable reply.  Notice of OP-3 returned as insufficient address.  Hence, she prayed to allow the complaint against OPs as prayed in the complaint.

10. Let us have a look at the relevant documents produced by the complainant.  Document No.1 is the copy of the invoice dated 18.06.2013 issued by OP-1 dealer to the complainant for having purchased Samsung handset I 9500 Galaxy S4 white bearing IMEI No.355167056481003 by paying a sum of Rs.41,799/-.  Document No.2 is the job sheet dated 03.08.2013 issued by OP-1 to the complainant.  Document No.3 is also copy of service request issued by OP-2 company to OP-3 service centre dated 14.08.2013.  Document No.4 is customer information slip issued by OP-2 Company to the complainant.  Document No.5 is legal notice dated 03.09.2013 issued on behalf of complainant to OPs.1 to 3 demanding OPs to replace the handset with brand new handset or to refund the amount within 7 days failing which complainant will approach Consumer Forum.  Document No.6 & 7 are served postal acknowledgement cards.  Document No.8 is returned postal cover.  Document No.9 is reply of OP-2 Company stating complainant is entitled only for repair.  On 16.09.2015 complainant has filed two memos stating he has purchased brand new Samsung phone and Samsung tablet.

11. Sri.M Mithun, Customer Relating Manager filed affidavit by way of evidence on behalf of OP-1 stating he is a dealer of mobile sets of various companies.  He admits that complainant purchased Samsung Grand mobile handset from him on 18.06.2013 by paying a sum of Rs.41,799/-.  After long period complainant approached him stating the said handset was not working and got it repaired by OP-1.  Complainant has to proceed against the company which is a necessary party.  There is no material evidence is produced by the complainant to prove the allegations.  Hence, OP-1 is not liable to pay any amount as claimed.  Accordingly OP-1 prayed to dismiss the complaint.

12. Sri.Sriniwas Joshi, Senior Manager filed affidavit by way of evidence on behalf of OP-2 stating complaint made by the complainant is in oral and not supported by any expert opinion.  After carrying out the service job on her first visit again complainant did not approach service centre and not made out any ground for replacement.  Since no defect in the product nor any repeated repairs, payment of full handset cost not arises.  Accordingly, OP-2 prayed to dismiss the complaint.  OPs.1 & 2 have not produced any documents.

13. On perusal of oral and documentary evidence of both sides it is made clear that complainant purchased Samsung Galaxy mobile handset from OP-1 dealer on 18.06.2013 by paying a sum of Rs.41,799/-.  The OP-1 has acknowledged receipt of the said amount and has issued invoice dated 18.06.2013 as per document No.1 and OP-1 has given company warranty of one year.  The said mobile handset became defective from the day one of its purchase.  Complainant approached OP-1 on the 2^nd day itself for the problems of call drops, battery does not hold power, motion sensor not working etc., as per document No.2 job sheet issued by OP-1 complainant approached OP-1 on 03.08.2013 for service.  Inspite of repair the problems re occurred in the handset.  Hence, complainant got issued legal notice on 03.09.2013 calling upon OPs to replace the handset with brand new handset or to refund the amount within 7 days.  The said notice served on OPs as per document No.6 & 7.  OP-2 Company has given reply to the notice as per document No.9 stating complainant is entitled only for repair not for replacement or refund.  Hence, this complaint.

14. As against the case of the complainant, the main defence of OPs.1 & 2 is complainant is entitled for only repair within the warranty period is not acceptable because although OP-1 has repaired the handset once the problems re occurred in the handset.  Hence, we are of the considered view that the handset supplied to the complainant is a defective one.  Further defence of OPs that complainant has not produced any expert report in support of her claim.  In support of its defence OP has not produced any documents to show that the handset is working.  When the handset is not working within the period of one year of warranty the complainant is entitled for free repairs, replacement or refund.  The OPs having received Rs.41,799/- from the complainant have supplied defective handset, inspite of repair the handset is not working.  OPs have failed to replace or refund the amount inspite of service of legal notice.  This act of OPs in neither repairing or replacing nor refunding the amount within the warranty period amounts to deficiency of service on the part of OPs.  We are satisfied that the complainant proved the deficiency of service against OPs.  Hence, the complaint of complainant is partly sustainable.  During pendency of this complaint, complainant has purchased brand new phone and tablet.  Hence, we are of the considered view that OPs are liable to refund the cost of the mobile handset being Rs.41,799/- to the complainant along with litigation cost of Rs.2,500/- to the complainant within 30 days from the date of receipt of this order failing which OPs shall refund the said amount along with interest at 6% p.a from the date of complaint i.e., 11.11.2013 to till the date of realization.  Accordingly, we proceed to pass the following:

       O R D E R

The complaint of the complainant is allowed in part.  OPs.1 to 3 are jointly and severally directed to refund Rs.41,799/- along with litigation cost of Rs.2,500/- to the complainant within 30 days from the date of receipt of this order failing which OPs shall refund the said amount along with interest at 6% p.a from the date of complaint i.e., 11.11.2013 to till the date of realization.  Further OPs are directed to pay litigation cost of Rs.2,500/- to the complainant.  Complainant to return the mobile phone Samsung Galaxy I 9500 S4 to OP-1 after receipt of the above amount from OPs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of September 2015)

MEMBER                               MEMBER                     PRESIDENT

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Witnesses examined on behalf of the complainant dated 27.06.2014

1. Smt.Jessie Thomas

Witnesses examined on behalf of the OP-1 dated 25.03.2014

1.      Sri.M. Mithun   

Witnesses examined on behalf of the OP-2 dated 02.08.2014

1.  Sri.Sriniwas Joshi

Documents produced by OPs     -    Nil

MEMBER                              MEMBER                      PRESIDENT

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