Karnataka

Kolar

CC/50/2018

Somashekar R.V - Complainant(s)

Versus

New Asian Traders - Opp.Party(s)

Sri.B.Sadasivachari

30 Oct 2018

ORDER

Date of Filing: 04/06/2018

Date of Order: 30/10/2018

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 30^th DAY OF OCTOBER 2018

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 50 OF 2018

Somashekar R.V,

Aged About 35 Years,

Aghrahara Village,

Mulbagal Taluk.                                                  

(Rep. by Sri. B.Sadasivachari, Advocate)                                ….  COMPLAINANT.

 

- V/s –

1) New Asian Traders,

Court Complex,

DVG Circle, Bus Stand Road,

Mulbagal.

(Rep. by Sri. C.M. Nayaz Ahamed, Advocate)

 

2) Samsung Service Centre,

No.361, 1^st Floor, Sharada Talkies,

Opposite Nanjundeshwara Temple,

Kolar.

(Exparte)

 

3) Samsung India Electronics Pvt. Ltd.,

A25, Ground Floor, Front Tower,

Mohan Co-operative Industrial Estate,

New Delhi-110044.

(Rep. by Sri.T.N.Ramesh & J.Nanda Kishore , Advocates)

       …. OPPOSITE PARTIES.

 

-: ORDER:-

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT,

01.   The complainant has filed this complaint against the opposite parties Under Section 12 of the Consumer Protection Act, 1986 and prays to direct the OP Nos.1 & 2 to replace the mobile phone or refund the mobile cost of Rs.7,590/-, repair charges of Rs.2,984/-, damages of Rs.10,000/- and compensation of Rs.10,000/- and in all a sum of Rs.30,574/- and allow the complaint.

 

02.   The brief facts of the complainant’s case is that, he has purchased Samsung Mobile Phone Galaxy J2, IMEI No. 1) 358974080497815 2) 359026080497813, 4G, SM0J200GZKHINS along with 1N Battery, 1N Travel Adaptor, 1N Stereo Headset in the retail shop of OP No.1 on 13.07.2017 bearing bill No.2001 for Rs.7,590/- at Mulbagal.  The mobile phone worked well for 03 months and de-functioned.  He complained the same to OP No.1 and later OP No.1 referred to OP No.2.  The complainant visited OP No.2 and OP No.2 performed service and repaired the mobile and charged Rs.2,984/- for repair work during warranty period.  The complainant paid the same and got the mobile.  The said mobile phone worked for 03 months and he faced trouble in functioning.  Again he visited OP No.2 and OP No.2 on enquiry demanded Rs.3,000/- to be borne by the complainant.  The complainant requested for replacement of the mobile OP Nos.1 & 2 denied either to replace or repair to be done.  The said mobile purchased by him is having manufacturing defect.  It de-functioned at the 2^nd time also within warranty period.  The non-replacement of the mobile and free repairing of the mobile within warranty period amounts to deficiency in service.  The complainant issued legal notice and the said legal notice was served on OP No.1 and it replied evasively. OP No.2 refused to receive the notice, OP No.3 not replied.  The complainant is an electrician by profession and he has to maintain the mobile phone for receiving orders and also for communication with the customers and he suffered mental shock and agony due to the inconvenience caused to the complainant by the Ops and prays to allow the complaint.

03.   The complainant has submitted below mentioned 06 documents along with his complaint:-

(i) Xerox copy of the Bill issued by OP No.1 dt.13.07.2017.

(ii) Xerox copy of the tax invoice and repair bill issued by OP No.2

(iii) Xerox copy of the warranty card

(iv) Office copy of the legal notice

(v) Xerox copy of the Reply notice

(vi) Refused envelop cover by OP No.2

 

04.   In response to the notice issued from this Forum, OP Nos.1 & 3 appeared through their counsel. OP No.2 placed exparte.  OP No.1 has filed version contending that, the complaint is not maintainable either in law or on facts and denied para-2 with respect to purchasing of the mobile as contended by the complainant and so also denied Para-3 of the complaint that the complainant complained to OP No.1 and OP No.1 referred OP No.2 and OP No.2 performed service and charged Rs.2,984/- towards repair work under the warranty period and put the complainant to prove the same.  The OP No.1 is not liable to pay any compensation or replacement of the mobile.  OP No.1 is the retail shop owner, the service center is liable to pay the compensation and prays to dismiss the complaint against this OP No.1.

 

05.   OP No.3 filed version and contended that, the complaint is devoid of merits and the same is mischievous.  Para-2 of the complaint is the fact and it does not require any comment.  The warranty is not applicable for each and every issue and more particularly when the customer approached the service center with physical damage condition.  The complainant has filed this complaint with malafide intention and failed to disclose why the service center has collected Rs.2,984/- on 11.08.2017 under the service job sheet bearing No.4248663829 and they noticed breakage of mobile LCD and the said physical damages does not come within the purview of warranty and the complainant is not eligible for FOC.  The complainant approached the service center on 11.08.2017 with broken LCD and not with technical issue or for rectification of any bad workmanship in his mobile.  The service center has replaced the broken LCD on chargeable basis and delivered the mobile in good working condition.  The complainant making false allegation before the Forum that, the service center has collected sum of Rs.2,984/- during warranty period.  The complainant has also misrepresented the Forum that, the service center has demanded Rs.3,000/- for completion of service work.  The complainant visited the service center for the second time on 08.12.2017 reporting that, the mobile touch is not working.  The service centre generated another job sheet bearing No.4251027623 and replaced the mobile touch free of cost and redelivered the mobile without collecting any amount or demanded any amount much less a sum of Rs.3,000/-.  After 2^nd service the complainant never visited the service center with any issue and this OP has denied that, the mobile phone is having manufacturing defect and it is nothing but the self-statement of the complainant.  This OP No.3 denied that, the service center is not providing free repair and question of deficiency in service does not arise and so also denied the allegation made in para-4 to 6 of the complaint.  The complainant has used the said mobile nearly for 11 months from the date of its purchase and the issue of manufacturing defect does not arise.  The complainant is not entitled for any relief as claimed in the complaint and prays to dismiss the complaint with exemplary costs.

 

06.   OP No.3 has filed following 02 documents:-

(i)       Xerox copy of screen shot of service job sheet No.4148663829

(ii)      Xerox copy of service job sheet No.4251027623

 

07.   The complainant has filed affidavit by way of examination-in-chief and exhibited 09 documents as per Annexure-C.1 to C.7 as follows:-

(i) Original Bill issued by OP-1 dt.13.07.17 – Annexure-C.1

(ii) Original tax invoice & repair bill by OP-2 – Annexure-C2.

(iii) Original Warranty Card – Annexure-C3

(iv) Office copy of legal notice – Annexure-C4.

(v) Reply by OP-1, dt.07.05.18 – Annexure-C5.

(vi) Reply by OP-3 dt.21.05.18 – Annexure-C6.

(vii) Refused envelop cover by OP-2-Annexure-C7.

 

08.   The OP No.3 has filed Memo to treat its version as its affidavit evidence and so also filed Memo with 02 citations:-

(i) R.P. No.4803/2012 at para-6

(ii) II (2017) CPJ 462 (NC) Head Note.

 

09.   OP No.1 did not adduce any evidence.  Heard arguments of the counsel for the complainant and OP No.3.

 

10.   Now the points that do arise for our consideration are that:-

POINT NO.1:-   Whether the complainant has proved deficiency in service on the part of the Ops?

 

POINT NO.2:-   Whether the complainant is entitled for the relief as prayed by him in the complaint?

 

POINT NO.3:-   What order?

 

11.   Our findings on the above points are that:-

POINT NO.1 & 2:-    Are in the Negative

POINT NO.3:-   As per the final order

                                        for the following:-

REASONS

POINT NOS.1 & 2:-

12.   These points are taken up together for discussion to avoid repetition of facts and reasonings.  We have perused the complaint, version filed by OP Nos.1 & 3, the evidence of complainant and OP No.1.  It is an undisputed fact that, the complainant has purchased the alleged Samsung mobile phone Galaxy J2, IMEI No. 1) 358974080497815 2) 359026080497813, 4G, SM0J200GZKHINS along with 1N Battery, 1N Travel Adaptor, 1N Stereo Headset in the retail shop of OP No.1 on 13.07.2017 bearing bill No.2001 for Rs.7,590/- at Mulbagal i.e., from OP No.1 as contended by the complainant.  To that effect the complainant produced original cash bill as per Annexure-C.1 dated: 13.07.2017 and now the OP No.1 cannot deny the same.  The complainant has contended that, OP No.2 has charged Rs.2,984/- for repairing the said mobile during the warranty period stating that, after 03 months of the purchase of the said mobile he found defects in it, but on the other hand OP No.3 has contended that, the customer approached the service center with physical damage condition and the complainant has failed to disclose the same to the service center.  The service center has charged the said amount as the said mobile having breakage of LCD and the physical damaged does not come within the purview of warranty and to that effect OP No.3 has produced Xerox copy of the service job sheet bearing No.4248663829 dated: 11.08.2017 and they have noticed breakage of mobile LCD.  The above said facts clearly disclose that, the complainant has suppressed the material facts about the physical damage of the mobile.

 

13.   The complainant has also contended that, after three months the complainant faced trouble in functioning of the mobile and once again he visited OP No.2 and OP No.2 on enquiry demanded Rs.3,000/- to be borne by the complainant and the complainant requested for replacement of the mobile.  OP Nos.1 & 2 denied either to replace nor repair to be done.  In that regard OP No.3 has contended that, the complainant has visited the service center for the second time on 08.12.2017 reporting that, the mobile touch not working.  The service center generated another job sheet bearing No.4251027623 and replace the mobile touch free of cost and redelivered the mobile without collecting or demanding any amount much less Rs.3,000/- as alleged by the complainant and to that effect the OP No.3 has produced Xerox copy of the job-sheet as per document No.2.  Hence the said allegation made by the complainant goes in vain which has no sanctity in the eye of law in view of said document No.2.

 

14.   On perusal of the above said two facts and the documents produced by the complainant and so also by the OP No.3 it does not disclose about any manufacturing defect in the alleged mobile handset.  The complainant has also not at all produced any document to show that, the alleged mobile is having any manufacturing defect.  The complainant has also not made out any case for replacement of the said mobile and so also he had not produced any document to show that, the said mobile handset is improperly functioning.  Further it is relevant to state here that, the complainant has not at all left the mobile for service, such being the case there is no deficiency of service on the part of the Ops.  The counsel for the OP No.3 has relied citations reported in R.P. No.4803/2012 of the Hon’ble National Commission, wherein his lordship has also relied National Commission judgment reported in I (2010) CPJ 235 (NC) & IV (2009) CPJ 144 (NC) and observed that, “the Consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification.”  In this case also the complainant without any document with respect to manufacturing defect he approached this Forum.  OP has also relied another citation reported in II (2017) CPJ 462 (NC) of Hon’ble National Commission, wherein his lordship has held that, “No expert opinion regarding defects in mobile set has been placed by complainant on record – Problems can arise while regular use of mobile and as ringer problem arose after almost 11 months, it cannot be said that, there was any manufacturing defect.”  Here in this case for the first time the complainant approached with respect to breakage of LCD and for the second time he approached the service center with respect to defect in mobile touch, and there is no any manufacturing defect found in the said alleged handset.  The principles of the above said two citations are attracted to the facts and circumstances of the case on hand.  Hence under these circumstances as discussed above, the complainant has miserably failed to prove the deficiency of service on the part of the Ops and the complainant is not entitled for the relief as prayed by him and accordingly we answer these points are in the Negative.

 

POINT (3):-

15.   In view of the above discussions on Point (1) & (2) we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is dismissed.  No order as to costs.

02.   Return the mobile and the charger with box to the complainant.

03.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 30^th DAY OF OCTOBER 2018)

 

 

 

 

 

LADY MEMBER                                PRESIDENT