Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased one Samsung J-7, Mobile Phone from Opposite Party No.3 for a sale consideration of Rs.13,500/- vide bill No. 11890 dated 05.10.2017 having IMEI No. 357488083263687 and 357489083263685 and said Mobile Set in question was under guarantee. The complainant noticed various problems in the Mobile Set in question including power key not work and sometime display hang and due this, he approached Opposite Party No.2 on 3.11.2017 for the repair of the Mobile Set in question, but they turned deaf ear and always dilly delaying the matter on one pretext or the other and has not removed the problem from the Mobile Set in question. Moreover, the Mobile Set in question is still lying in the service centre i.e. Opposite Party No.2. and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to return the amount of Rs.13,500/- alongwith interest @ 18% per annum and also to pay sum of Rs.15,000/- as compensation/ damages for the mental as well as physical harassment and Rs.22,000/- as misc.expenses or any other relief to which this District Consumer Commission may deem fit be also granted.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the complainant has submitted the Mobile Set in question with Opposite Party No.2 for repairs on 3.10.2017 with reported problem of ‘power key not work & display’ against job sheet and retained the Mobile Set in question for inspection and repair. As per the clause No.5 mentioned on the job sheet “The product has been accepted for service subject to internal verification. If product is found to be tampered, misused, components removed, cracked or liquid logged, the same will not be considered under warranty. In such case customer will have to pay for the repair or the product will be returned without repair.” On internal inspection of the Mobile Set in question, it was found liquid logged which is a warranty void condition. The complainant was informed about the same by Opposite Party No.2 and estimate of repair was given. But the complainant refused to get his handset repaired on chargeable basis. The liability if any is of complainant who has mishandled the handset leading to liquid logging. The Mobile Set in question has been physically mishandled by the complainant as the Mobile Set in question was liquid logged/ damaged. Moreover, 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 i.e. authenticated report of independent expert and qualified person of Central approved laboratories in support of alleged submission as required under law. In the absence of any duly qualified independent expert evidence, the claim can not be allowed. The complainant claims the said Mobile Set in question to be suffering from defects, therefore, it is the legal duty, under the discharge of burden, upon the complainant to establish the same by technical expert report but no such report has been adduced by the complainant before this District Consumer Commission. Hence, there is no deficiency of service or breach of contract on the part of the Opposite Party No.1. On merits, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the complaint may be dismissed with costs.
4. None has come present on behalf of Opposite Party No.2, hence Opposite Party No.2 is proceeded against exparte.
5. Initially, Sh.Prem Pal Singh, proprietor of Opposite Party No.3 appeared and submitted affidavit by claiming that same may be treated as reply, but thereafter, none has come present on behalf of Opposite Party No.3.
6. In order to prove his case, the complainants tendered into evidence his affidavit Ex.CA, Ex.CB alongwith copies of documents Ex.C1 to Ex.C4 and closed the evidence on behalf of the complainant.
7. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.R1 and Ex.R2 and closed the evidence.
8. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
9. During the course of arguments, ld.counsel for the Complainant as well as Opposite Party No.1 have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties. Undisputedly, the complainant purchased one Samsung J-7, Mobile Phone from Opposite Party No.3 for a sale consideration of Rs.13,500/- vide bill No. 11890 dated 05.10.2017 having IMEI No. 357488083263687 and 357489083263685 and said Mobile Set in question was under guarantee, copy of the bill placed on record is Ex.C2. The case of the complainant is that during the warranty period, said Mobile Set in question started giving problem and he prays for refund of the said handset. On the other hand, the defence of the Opposite Parties is that the complainant has submitted the Mobile Set in question with Opposite Party No.2 for repairs on 3.10.2017 with reported problem of ‘power key not work & display’ against job sheet and retained the Mobile Set in question for inspection and repair. As per the clause No.5 mentioned on the job sheet “The product has been accepted for service subject to internal verification. If product is found to be tampered, misused, components removed, cracked or liquid logged, the same will not be considered under warranty. In such case customer will have to pay for the repair or the product will be returned without repair.” On internal inspection of the Mobile Set in question, it was found liquid logged which is a warranty void condition. The complainant was informed about the same by Opposite Party No.2 and estimate of repair was given. But the complainant refused to get his handset repaired on chargeable basis. No doubt, the complainant has not produced any expert report to prove any manufacturing defect in the Mobile Set in question, but however, in the bill itself Ex.C2, there is specific mention about one year warranty of service centre. Moreover, the hand set in question is lying with Opposite Party No.2 since last about 5 years and keeping in view the peculiar circumstances of the case and in the interest of justice, we direct Opposite Parties No.1 and 2 to repair the Mobile Set in question of the complainant free of costs (without charging any amount from the complainant) to the satisfaction of the complainant. No order as to costs. Compliance of this order be made by Opposite Parties No.1 and 2 within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint today i.e.23.05.2022 at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
