ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant under Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging deficiency in service in respect of not repairing the mobile set properly and for its replacement with a new mobile handset and for Rs.80,000/- towards damages, telephone expenses, conveyance expenses,  and for Rs.15,000/- towards litigation expenses and other reliefs as this forum deems fit under circumstances of this complaint.

2.     The brief facts of the complaint are that: the complainant purchased mobile SAMSUNG J7 Prime Gold on 06.04.2018 by paying Rs.14,490/- on monthly EMI basis from OP.No.1. After purchasing the same, he used it for about 20 days and it worked well during the said period. After wards, it started giving trouble and there was issue of charging of the mobile.  Call was also not going from the mobile. He contacted OP.No.1 on 20.6.2014 and gave a complaint and handed over the mobile set for repair. Op.No.1 raised a bill for Rs.13,500/- as repair charges.  He refused to pay the same as the mobile set was covered under the guarantee/warranty period of one year. OPs did not respond to his request for free of cost service and also did not return the mobile set. The complainant is a driver by profession and has his own car linked to OLA and UBER and the said mobile handset is a necessary for him to run his business smoothly and he got a legal notice issued on 20.06.2018 for which, OP.No.1 sent a reply wherein he requested the complainant to contact the authorized service center for repair and wanted to escape his liability.

3.     When OP.No.2 was contacted on 13.09.2018, he offered to repair the mobile handset by charging Rs.12,921/- and offered 60% discount on the said repair charges. There is deficiency in service of OPs in not repairing the mobile set and hence filed this complaint seeking a direction to the OPs to provide him  a new mobile handset with good working condition and for damages and litigation expenses.

4.     On the other hand, upon the service of notice, OP.No.1 and 2 appeared before the forum and filed their respective versions.

5.     In the version filed by OP.No.1, it is contended that the complaint is not maintainable either in law or on facts and liable for dismissal. It has admitted the purchase of mobile set SAMSUNG J-7  PRIME GOLD on 06.04.2018 for a sum of Rs.14,490/- on monthly EMI basis.  The allegation of the fact that the said mobile set having trouble in respect of charging and not able to make call from it has to be proved by the complainant.

6.     It is contended that OP.No.1 is only a dealer selling the mobile of various brands supplied to him by Vikas distributors. OP.No.1 is not the manufacturer but only a dealer to sell the mobile sets. The manufacturer of the mobile handset gives one year warranty and also provide the facility of authorized service centers to rectify the defects if any.  The same was intimated to the complainant to approach the customer care whereas he misused the same and has concocted the stories to file this complaint.

7.     OP No.2 on the other hand has filed his version contending that, the complaint is liable to be rejected as it is baseless, devoid of merits and cause of action, and filed only with mischievous intention, there is no intention or basis and filed this complaint and it is purely abuse of the process of law.  Proper parties have not been made in the complaint.  He has also failed to produce the service job sheet. The complainant is not a consumer and cannot be considered as a consumer since he is using the mobile set for his business purpose as he has mentioned in the complaint that he cannot run the business smoothly due to the non working of the mobile. Hence it is to be considered  that he is using the mobile for commercial activity. He has admitted the purchase of the mobile set and company has provided limited period warranty towards product performance only. Complainant has not produced the entire documents before this Forum for adjudication, whereas, he has produced the warranty booklet in part whereas, it has contained seven sheets.

8.     OP No.1 was contacted to resolve the issue. In fact he was asked to contact the authorized brand service center only. There is no document to show that the mobile set was handed over to OP.No.2 for service and also OP No.1 demanding Rs.13,500/- for  repairing the same.

9.      It is contended that, as per the information collected, the complainant visited the service center twice personally not due to technical problem but with liquid logged condition. He made first visit on 03.05.2018 and the job sheet No.4259722292 and for the 2^nd time, he visited on 12.09.2018 and the job sheet No.426839092. No service was provided by the service center since the complainant’s mobile was having problem of LCD, PAB and touch key were liquid logged. Hence the service center declined to provide service free of cost as the warranty has become void. The same was informed to the complainant and also to pay the charges and the same could not be repaired free of cost.

10.      It is contended that, it has produced the technical report in that respect. The liquid log do not arise due to technical fault or due to bad workmanship. It arises only when the set is handled carelessly and without caution. Hence the request for free repair was turned down. 

11.       In the warranty card under the heading important information and under sub heading out of warranty conditions and warranty void condition, it is clearly stated that the warranty shall be void if product has failed under certain conditions / types (example water logging misuse etc.) the condition No.13 defects caused by customer negligence, tampering shall void the product warranty. Hence since there is liquid log on the mobile parts, the warranty could not be honoured and hence the request for free cost repair was rejected.

12.      It is contended that, there is no defective workmen ship in respect of the product sold to the complainant and any physical damage, water log or third party intervention, the product can only be repaired on chargable basis paid by the customer and further if the defective parts could be replaced or defect could be removed, then replacement with a new set cannot be ordered as per the decision of the Hon’ble National Consumer Commission. Hence the complainant is not entitled for replacement of the mobile set or refund of the value of the mobile set and that there is no deficiency in service on its part. On the other hand, as a goodwill gesture they offered to get it repaired at a discount of 60%. Inpsite of it, complainant was not ready to pay the remaining 40% towards repair charges. Hence prayed the Forum to dismiss the complaint.

13.   In order to prove the case, Complainant and OPs filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the Complainant has proved

    deficiency in service on the part of the    

    Opposite Parties?

2) Whether the complainant are entitled to

    the relief prayed for in the complaint?

14.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2:            Partly in the Affirmative

                                For the following:-

REASONS

POINT No.1:-

15.   It is not in dispute that, the complainant purchased mobile set from OP.No.1 manufactured by OP.No.2. It is not in dispute that warranty has been given to cover the defects in the product arising out of manufacturing or faulty workmanship but do not cover  the defects due to misuse third party repair attempts, and if the product has failed under certain conditions or types such as water logging misuse. Defects caused by customer negligence tampering shall void the product warranty.

16.   It is not in dispute that the complainant handed over mobile set for repair to OP.No.1 for which OP.No.1 refuse to repair the same on the ground that there is liquid log in the mobile set and it violates the conditions of the warranty and that he would repair the same provided the complainant pays the amount. 

17.   It is also in the version of OP.No.2 that, OP.No.1 offered to get the said mobile repaired by offering discount of 60% out of the cost of  the repair. Though the OP as per Ex.R4 produce the photographs to show that there is liquid log in the mobile set it is not clear as to which part the liquid is logged. Further it is to be consider here that Op.No.1 is a renowned manufacturer of the mobile set. Immediately within 20days of the purchase the mobile set was giving problem.   Nowhere in the version of OP.nO.1 it is stated that the mobile set was liquid logged. Whereas OP.No.2 on the basis of the information obtained from Op.No.1 that has stated that there was liquid log. It does not specify that water has seeped in to the mobile handset.  The mobile set is a waterproof material and one cannot expect that the water into the mobile set and there is no material placed by OPs that in fact the said mobile has fallen into water.

18.   Even it has fallen into the water the manufacturer owes a duty to see that the water shall not enter into the mobile set when such being the case by consideration of during which the defect has occurred in the mobile set it is to be considered that it is manufacturing defect and hence falls within the ambit of warranty  and hence OPs are bound to repair the same free of cost. Not repairing the same, amounts to deficiency in service.

19.   The Ops have taken the contention that this complaint is not maintainable as the complainant is not a consumer and he is using the mobile handset for business purpose. Hence prayed the forum to dismiss the complaint. It is in the complaint that since the OPs did not repair the handset or replace the handset he could not contact the operators of OLA and UBER for whom he has linked his car and hence his business has come down.  

20.   It is to be held here that by using the handset only he is not earning profit, on the other hand, as everybody knows the mobile handset is a gateway for communication and by using the same he wanted to have the business contacts. From that only, it cannot be held that he is earning money from the mobile handset. Only it is a tool for communication. If the contention of the OPs is taken into consideration the mobile handset is used for business purpose, even a single call for purchase of material or for enquiry of the value of the goods or enquiring the property to be purchased amounts to business which preposition cannot be accepted. Hence the arguments and the contention of the OP in that respect cannot be accepted.  In view of the above reasons, we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

21.   Complainant has paid Rs.14,490/- as per Ex.P1 the tax invoice towards the cost of the mobile set .Ex.P2 is the warranty card and Ex P3 is the legal notice  which has been replied by OP.NO.1 and 2 as per Ex.P4 and P5. The complainant has sought for replacement of the said mobile handset and also damages of Rs.80,000/-. No material evidence has been placed regarding sufferance of damage to the extent of Rs.80,000/- it is to be mention here that the damages to be granted reasonable and it shall not be a fortune for the person who seeks damage. We assess the damage at Rs.5,000/- globally. 

22.   The act of OPs in not repairing the mobile handset or replacing the same made the complainant to approach this Forum for exercising his right, for which he has to spent time, money and energy and for which we assess at Rs.5,000/- towards litigation expenses to be paid by OPs jointly and severally to the complainant. Hence we answer Point No.2 Partly in the Affirmative and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.
2. The OPs are jointly and severally hereby directed to get the mobile set repaired properly within 30 days, failing which to replace the same with a new one of the same model to the complainant, in case they are not able to replace the same with a new one they are directed to refund of Rs.14,490/- along with interest at 12% per annum from the date of purchase of the mobile handset till date of payment of entire amount.
3. Further Ops are hereby directed to pay a sum of Rs.5,000/- towards damages and Rs.5,000/- towards cost of the litigation expenses.
4. The O.Ps are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 14^th JUNE 2019)

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of Tax Invoice dated 06.04.2018.

Ex P2: Copy of the Gaurantee/Warantee Card.

Ex P3: Copy of Legal Notice dated 23.06.2018.

Ex P4: Copy of Reply notice dated 31.07.2018.

Ex P5: Copy of Reply notice dated 13.09.2018.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1:Sri N.T. Shibili, Area Service Manager of OP-2.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of letter of authorization.

Ex R2: Copy of Warranty terms and conditions.

Ex R3:Copy of Technical Report.

Ex R4: Copy of Images of mobile parts.

MEMBER                        PRESIDENT

A*