Punjab

Fatehgarh Sahib

CC/45/2015

Harjit singh - Complainant(s)

Versus

Narinder Enterprises - Opp.Party(s)

Sh Lalit Gupta

15 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                                 Consumer Complaint No.45 of 2015

                                                                 Date of institution:  22.04.2015            

                                                             Date of decision   :  15.01.2016

Harjit Singh son of Sh. Nirmal Singh, resident of village Bhalmajra, Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

1. Narinder Enterprises, Cinema Road, Sirhind Mandi, Tehsil and District Fatehgarh Sahib through its Authorized signatory.
2. Samsung India Electronics Pvt.Ltd.,B-1,Sector 8, Phase 2, Noida District Gautam Budh Nagar, (U.P.)through its M.D./Chairman.
3. Samsung Care Center Sugar Mill Road Morinda, District Roopnagar through its Authorized Signatory.
4. Pooja Mobile Plaza, Samsung Care Center, Sagar, Madhya Pardesh through its Authorized Signatory.
5. Samsung Care Center, Phase V, Mohali through its Authorized Signatory.

…..Opposite Parties

Complaint Under Sections 12 to 14 of the Consumer Protection Act.

Quorum

  Sh. Ajit Pal Singh Rajput, President                                                

Smt. Veena Chahal, Member                                                          

Sh. Amar Bhushan Aggarwal, Member

   

Present :    Sh.Lalit Gupta, Adv.Cl. for the complainant.                      

                 Sh.G.S.Nagra,counsel for OP No.2 & 3.              

                  Opposite parties No. 1,4 and 5 exparte.

 

ORDER

Ajit Pal Singh Rajput, President.

                   Complainant Harjit Singh son of Sh. Nirmal Singh, resident of village Bhalmajra, Tehsil and District Fatehgarh Sahib has filed this complaint against the Opposite parties (hereinafter referred to as the OPs) under Section 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                The complainant purchased a Samsung mobile phone Model Grand Prime bearing IMEI No.356554065003051 from OP No.1, vide invoice No. 9447 dated 03.01.2015 for an amount of Rs.14,500/-. The complainant also got insured the said mobile hand set and paid Rs.2,000/- for the same. At the time of purchase of the said mobile hand set OP No.1 assured that the mobile hand set is of an excellent quality and also promised that best services will be provided by him and by OP No.2. It also gave guarantee/warranty of one year for the said mobile hand set.  Thereafter on 06.01.2015, the Camera of said mobile hand set stopped functioning and showing on display “Media Server Failed Camera Needs restart”, when he was taking photographs in the marriage of his relative. The complainant visited the office of OP No.3 and it repaired the mobile hand set and assured the complainant that the Camera will work properly in future.  Thereafter on Lohri Festival of 2015, when the complainant went to attend the Lohri function of his relative at Khamano, the said fault again occurred in the said mobile hand set. The complainant again visited the office of OP No.3 and it again repaired the mobile hand set but no Job Card was issued to the complainant. The complainant made a complaint at Toll Free number of Samsung Care Centre in this regard. Thereafter on 25.01.2015, when the complainant went to Sagar Madhya Pradesh to attend a function in the school of his daughter, said fault again occurred in the mobile hand set.  The complainant visited the office of OP No.4. The OP No.4 repaired the mobile hand set and issued job card/bill No. 4188661537 to the complainant. Thereafter satisfaction calls were made by OP No.4 to the complainant but the complainant always gave reply regarding his non-satisfaction. Thereafter, on 10.03.2015, the above said fault as well as automatically refresh and hanging problem occurred in the said mobile hand set. The complainant visited OP No.5 and OP No.5 updated the mobile hand set with new software version and assured that the said problem will not occur in future but it did not issue any jot card or bill to the complainant. Thereafter on 25.03.2015, the said defects again occurred in the mobile hand set and the complainant made so many calls at Customer Toll Free number but no response has been given by the OPs. Thereafter, the complainant visited to OP No.1 and requested to replace the said mobile hand set with new one or to refund the amount of Rs.14,500/- i.e. price of mobile hand set plus Rs.2,000/- as insurance amount but it did not listen to the genuine request of the complainant. Hence, this complaint for  giving directions to refund the amount of Rs.14,500/- i.e. price of the mobile hand set plus Rs.2,000/- as insurance amount and further to pay Rs.80,000/- as damages/compensation for mental agony and harassment suffered by the complainant at the hands of the OPs.

3.                Notice of the complaint was given to the OPs. OPs No. 1,4 and 5 choose not to appear to contest this complaint despite service and thus they were proceeded against exparte. OPs No.2 & 3 appeared through its counsel Sh.G.S.Nagra, Advocate and filed the written version.

4.                In reply to the complaint OPs No. 2 and 3 raised certain preliminary objection, inter alia, that the complainant is not entitled for any relief from this Forum as he has concealed the true and material facts; the present complaint is liable to be dismissed under Section 26 of the Consumer Protection Act as the present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations. As regards the facts of the complaint OPs No. 2 and 3 stated that the performance of the mobile phone depends upon the physical handling of the product apart from installation and downloading of various mobile applications, games and other software. The problem of camera as alleged by the complainant was found to be due to physical mishandling of the handset in question. There is no inherent defect in the handset and the said problem has arisen due to mishandling. It is further stated that the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence. In the absence of any expert evidence the claim cannot be allowed. There is no deficiency of service or breach of contract on the part of the OPs. The OPs or its service centre has never denied after sales services and they are still ready to provide service to the complainant, if required. After denying the other averments made in the complaint, OPs prayed for dismissal of the complaint.

5.                In order to prove the case, the complainant tendered in evidence his affidavit Ex. C-1, true copy of bill dated 03.01.2015 Ex.C-2, attested copy of insurance policy Ex. C-3, attested copy of receipt Ex. C-4 and closed the evidence. In rebuttal OPs No.2 and 3 tendered in evidence affidavit of Sunil Bhargav. Ex. OP2/1 and closed the evidence.

6.                The ld. counsel for the complainant has submitted that alongwith the mobile set he also purchased an insurance of ultimate protection i.e Ex.C-3.The ld. counsel further submitted that as per the said insurance, there is a facility provided, which blocks unsafe applications. The ld. counsel pleaded that the OPs have pleaded in their pleadings that the problem in the hand set is due to downloading of various applications and games. The ld. counsel brought to our notice that the said problem could not occur, as the ultimate protection insurance provides application that blocks the unsafe applications and hence the same cannot cause any problem. He further pleaded that there is also a defect in the camera, which the OP service center was not able to rectify despite several visits. The ld. counsel argued that the mobile handset in question had been discontinued as the general public was facing the similar defects in the handset despite being in warranty period.

7.                On the other hand, the ld. counsel for OPs No. 2 & 3 submitted that the performance of the mobile phone depends upon the physical handling of the product apart from installation and downloading of various mobile applications, games and other software. He further submitted that the complainant had mishandled the said handset therefore the problem in the camera persisted. The ld. counsel stated that the problem reported by the complainant had been rectified and the complainant is making false acquisitions against the OPs.

8.                 After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions, we find that there is force in the submissions of the ld. counsel for the complainant. It is well established from the statement of complainant i.e Ex.C-1 and from the copy of the ultimate protection Insurance i.e Ex.C-3, that an application was provided by the OP no.2 & 3 for blocking unsafe applications, therefore, no such software or application could be installed in the said handset and if it was still being installed then the OP No.2 & 3 were liable to rectify the same. In the present case the OPs despite providing the protection application could not rectify the problems in the handset. If OPs No.2 & 3 had provided certain service/feature in the mobile set and the same could not be rectified then it was the duty of the OPs No.2 & 3 to  either refund or change the handset. We are of the considerate view that, it was the responsibility of OPs No.2 & 3 to repair or replace the Mobile Set to the satisfaction of the complainant, since it was under warranty. Complainant in his statement i.e Ex.C-1 has in detail explained as to how he felt physically and mentally harassed due to the act and conduct of  OP.No.2 &3. OP no.1 is only the retailer hence he has nothing to do with the defect/functioning of the said mobile set.

9.                Accordingly, we find that OPs No.2 & 3 have committed deficiency in service and have not been able to properly redress the grievance of the complainant. Since the said mobile handset has been discontinued, therefore we direct OPs No.2 & 3 to refund the amount of Rs.14,500/- alongwith the cost of insurance cover i.e Rs.2000/- as the same was unable to block unsafe applications,  within a period of 30 days from the date of receipt  of this order.  The complainant is also held entitled to the damages suffered by him on account of harassment and mental tension. The damages are assessed at Rs.2,500/- and litigation cost of Rs.1,500/-. The damages and the costs may be paid within a period of 45 days from the date of receipt of the copy of this order. In case OPs No.2 & 3 are unable to comply with this order they shall be liable to pay 9 % interest per Month till its realization. The present complaint stands accepted against OP No.2 &3.  

 

10.              The arguments on the complaint were heard on 07.01.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced                                                                                         

  Dated:15.01.2016                                                                (A.P.S.Rajput)           

                                                                                                President

 

     (Veena Chahal)   

         Member    

                     (A.B.Aggarwal)      

                 Member