DISTRICT CONSUMER DISPUTES REDRESSAL FORUM FATEHGARH SAHIB

Consumer Complaint  No.     :        46 of 21.09.2018

                    Date of Decision                      :         27.05.2019

Bharat Bhushan Sharma son of Sh.Amrit Lal Resident of Village Balahri Kalan, Tehsil and District Fatehgarh Sahib C/o Chamber No.124, Lawyer’s Complex, Block B, District Courts, Fatehgarh Sahib.

……..Complainant

Versus

1. Narinder Enterprises, Cinema Road, Sirhind Mandi, Tehsil & District Fatehgarh Sahib through its Authorized Signatory.
2. Samsung India Electronics Private Limited, B-1, Sector-8, Phase 2, Noida, District Gautam Budh Nagar (U.P.), through its M.D./Chairman.
3. Samsung Care Center, SCF 48, 1^st Floor, Mohali Stadium Road, Near Reliance Fresh, Phase 5, S.A.S. Nagar (Mohali) through its Authorized Signatory.
4. Samsung India Electronics Private Limited, Regd. Office at A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi – 110044 through its Authorized Signatory.

…..Opposite Parties

Complaint Under Sections 12of the Consumer Protection Act 1986.

Quorum

Sh. Kuljit Singh, President.

Sh. Inder Jit, Member

Present :      Sh.Bipandeep Singh, Tejay, Adv. counsel for complainant.             OP Nos.1, 3&4 ex-parte.

                    Sh.Gursharanjit Singh, Adv. counsel for OP-2.

ORDER

By Kuljit Singh, President

1. Complainanthas filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainanthas purchased Samsung J7Max mobile on 29.09.2017  for Rs.17,000/- vide bill No.914 from OP-1. OP-1 had given one year warranty.  In the month of May 2018, said mobile set became defective as the same used to automatically stopped working and restart a number of times every day. Then, he immediately approached to OP-1 and handed over the said mobile in first week of June 2018 for its repair.  OP-1 kept the mobile set with it and told him that it will take at least 3 days time for repair. After 3 days, OP-1 gave the said mobile to complainant after its repair by saying that there was software problem in mobile which was resolved by Company and now mobile will not stop functioning. Thereafter, again after few days same problem started. Then immediately complainant visited to OP-1 and told about the same problem but this time OP-1 denied his liability and saying that he will not do anything.  The complainant requested the OP-1 either to repair the said mobile or to replace it with new one or to return the amount/price of said mobile as the said mobile is within guarantee/warrantee period but OP-1 did not listen to genuine request of complainant. Due to said illegal act of OPs, the complainant faced so many difficulties and also suffered huge financial loss as the complainant is an advocate by profession.  The Complainant prayed that OPs be directed to replace the said mobile with new one or to return the price of mobile and also claimed Rs.50,000/- as compensation for harassment. 
3. Upon notice, the OP No.1,3 & 4failed to appear and were proceeded against ex parte vide order dated 18.03.2019.
4. The complaint is contested by the OP-2, who filed written reply. In reply, OP-2 raised preliminary objections that complaint is bad for mis-joinder of parties. Answering OP and OP-3 have unnecessarily been impleaded as party. No cause of action arose to complainant; as per record of OP-3, the alleged handset in question has never been submitted with OP No.3 with any kind of problem till date; this shows that there is no defect in the handset of complainant; the answering OP has thoroughly checked the record of OP-3, till date complainant has not reported any kind of problem to OP-3; there is no deficiency in service on the part of answering OP; complaint has been filed with mischievous intentions.  There is breach of warranty terms and conditions.  The handset seems to have been physically mishandled by complainant leading to some damage which has not been disclosed by complainant. Due to physical damage, if any, the product is not covered under warranty and the repair is to be done on chargeable basis only. He is falsely alleging that mobile in question is not working properly; this Forum has got no jurisdiction; The complainant has not set out any legitimate ground entitling him for replacement of said damaged mobile phone. Complaint is gross abuse of process of law and is totally false and frivolous.  In the absence of any technical expert report, the complaint of complainant cannot be decided as per Provisions of Consumer Protection Act. Answering OP relied on judgment of Hon’ble National Commission in case of “Dr.Hema Vasantilal Dakoria Vs Bajaj Auto Limited & others reported at II (2005) CPJ 102 (NC), in which it has been clearly laid down that: “As per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered”. Answering OP also placed reliance on Hon’ble Supreme Court in “Sterocraft Vs Monotype India Ltd. New Delhi (2000) NCJ (SC) 59 vide which it is clearly 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”.O.P.No.2 admitted that there is warranty of one year subject to warranty terms and conditions but there is no guarantee.  It is submitted that OP-1 is not authorized to repair the mobiles manufactured by answering OP because OP No.1 is only a retailer and not authorized service centre. It is also denied that OP-1 gave the mobile to complainant after three days after its repair by saying that there was software problem in mobile which was resolved.  The complainant himself is an advocate but he failed to explain why he did not approach to OP-3 – authorized service centre of mobile phones till date and as to why he allegedly kept on approaching OP-1 for alleged defect in his mobile knowing that OP-1 is not competent to repair the mobile.  The answering OP is only liable to repair the product in question as per warranty terms and conditions on chargeable basis.  It is prayed that complaint of the complainant be dismissed with costs.
5. In order to prove the complaint, the complainant has tendered in evidencehis affidavit Ex.CW1/A, alongwith documents Ex.C-1 to Ex.C-6 and closed the evidence. In rebuttal, the counsel for OP-2 tendered in evidence affidavit of Anup Kumar Mathur Ex.OP2/1alongwith true copies of documents i.e. Ex.OP2/2 to Ex.OP2/3and then closed the evidence.
6. We have heard learned counsel for the parties and have also examined therecord of the case very carefully.
7. The question for determination before the Forum is that whether this Forum has jurisdiction or not.  From the record, it is transpired that mobile in question has been purchased from OP-1 who is runningits business in the District Fatehgarh Sahib.  So this Forum has territorial jurisdiction to decide the dispute of present complaint.
8. Both the parties have admitted that the mobile in question was purchased by complainant from OP-1 for Rs.17000/- vide bill dated 29.09.2018.  It is also revealed from Ex.OP2/3, warranty card that the warranty period of mobile in question is one year.  The date of purchase is 29.09.2018 and as per version of complainant, problem in mobile had occurred in the month of May 2018when the mobile was in warranty period.
9. Now the point for consideration is that whether the mobile in question is mis-handled or physical damaged or liquid logged by the complainant or not? Onus to prove it is upon the OPs that problem of mobile in question occurred due to water logging in the mobiledue tomishandling.  The contention of OP-2is that there may be mishandling and it was found that mobile in question was physical damaged which is warranty void condition.  Moreover, the OP-2 has alleged that complainant submitted the mobile with OP-1 who is not authorized to repair the mobile but the same fact can be verified from the OP No.1&3 who has failed to appear in this Forum, so an adverse inference is drawn against OP No.1&3.
10. In the light of leading judgment of Hon’ble Supreme Court in case titled as “Sterocraft Vs Monotype India Ltd, New Delhi (2000) NSJ (SC) 59 has clearly 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.” The consumer can only claim repairing of the product if permissible under the terms of service contract or warranty.  Moreover, the OP-2 has submitted that as per warranty conditions, the company can repair the mobile set.
11. Keeping in view the fact and circumstances of the complaint, this complaint is partly allowed and the OPsaredirected to repair the mobile to the satisfaction of complainant, free of costs and handover to him after making it defect free and also provide continuance warranty for remaining warranty period from the date of delivery of mobile to complainant. Further, the OPs are directed to pay Rs.5,000/- as compensation for harassment. Complainant is also held entitled for litigation expenses to the tune of Rs.2,000/- to be paid by O.P.’s.
12. The entire compliance of above said order be made by the OPs within thirty days from the date of receipt of certified copy of this order.
13. Copy of order be sent to the parties free of cost and thereafter the file be consigned to record room

Pronounced:27.05.2019

                                                                   (Kuljit Singh)

                                                               President

                                                          (Inderjit)

                                                           Member