C.F. CASE No. : CC/09/68
COMPLAINANT : Sadhana Sarkar,
W/o Judhistir Sarkar,
Vill. & P.O. Nakashipara,
P.S. Nakashipara,
Dist. Nadia
– Vs –
OPPOSITE PARTIES/OPs : 1. Prop. Saha Enterprise,
Vill. Station Road,
P.O. Bethuadahari,
P.S. Nakashipara,
Dist. Nadia.
: 2: Managing Director/Head of the Office
/Company/Chief Manager,
Samsung Electronics India
Information & Telecommunication Ltd.
B-1, Sector-81, Phase-II
Noida-201305.
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: KUMAR MUKHOPADHYAY MEMBER
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 8th January, 2010
: J U D G M E N T :
In brief, the case of the complainant is that she purchased a Samsung mobile set from the OP No. 1 on 01.07.09 at a price of Rs. 1,099/-. It is her further case that from the very beginning the set was not working properly as it was a defective one which she intimated the OP No. 1. The OP No. 1 advised the petitioner to meet the customer care centre at Roy Para, Arindam Enterperise, Krishnagar, Nadia for checking the mobile set. Under this instruction of the OP No.1, the petitioner went to Arindam Enterprise, Roy Para, Krishnagar for checking her mobile set and deposited it to the centre on 27.07.09 with the complaint that battery back up poor and also nonfunctioning of the mobile set. The service centre after receiving the mobile set did not rectify the defect though gave a receipt to this petitioner. Then she met the OP No. 1 and requested him to give another mobile set in exchange of the old defective one, as it was not possible to repair the said mobile set at which the OP No. 1 told her that he was unable to give any new mobile set in place of the defective set. The said mobile set is still lying in the custody of the petitioner and it cannot be used. So having no other alternative she has filed this case praying for the reliefs as stated in the petition of complaint.
Summons were duly served upon the OP No. 1 & 2. On behalf of the OP No. 2, one Arindam Saha appeared before this Forum on 09.10.09, but no written version was filed by him. The OP No. 1 also filed hajirah, but did not file any written version though so many dates were granted to them for filing written version. Hence the case is fixed up for exparte hearing.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant become able to prove her case?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
‘Annexure – 2’, cash memo issued by Saha Enterprise speaks that the complainant purchased one mobile set No. FCCID:A3LSCH-B189, model Samsung on 01.07.09 at a price of Rs. 1099. ‘Annexure – 3’ is another document from which it is available that the complainant deposited the said mobile set to the OP No. 1 on 27.07.09 with the complaint battery back up poor. It is the complainant’s case that the OP No. 1 did not repair the mobile set and the OP No. 2 also did not replace a new one in exchange of the old defective one. The warranty card issued by the Samsung Co. is marked as ‘Annexure – 1’ in which the terms and conditions are explained. Point No. 1 speaks that this warranty extends for a period of twelve (12) months commencing from the date of the activation/purchase of the product, except for the battery for which warranty period would be six (6) months from the date of activation/purchase of the product. Point No. 2 speaks that during the warranty period Samsung or its authorized service network will repair or replace at Samsung’s option the product or any relevant parts thereof in the event that the product is found to be defective. The repaired product or the product/part provided as a replacement for a defective product/part shall be free from defects. The consumer/purchaser of the product or his/her assignee (“Consumer”) shall not be charged (whether for parts, labour or otherwise) for the repair or replacement of a defective product/part during the warranty period. All replaced parts, boards or equipment shall become the property of Samsung.
In this case, we find that the defect of the mobile set was detected by the complainant just after purchase which she intimated the OP No. 1 on 27.07.09 and the set was purchased on 01.07.09. So we find that the defect was brought to the notice of the OP No. 1 within one month since the date of purchase. On behalf of the complainant, one Gupinath Das has filed evidence before this Forum, inter alia, stating that he is an experienced mechanic of TV, Tape Recorder and Mobile Set and he has been dealing with those articles for more than 10 years. He has stated in his evidence that the complainant, Sadhana Saha met him on 28.07.09 with a Samsung mobile set for repairing the same. He took the mobile set on that date and checked it and its defect was detected by him to the extent that the battery back up was poor and the said mobile set could not be repaired due to defective spare parts which he examined also. So on the same day he handed over it to the complainant with the opinion that it was not possible for him to repair the said mobile set as it was a defective one. This evidence is supported by affidavit also. We have already discussed that no written version is filed on behalf of the OP No. 1 or 2 in this case and they did not ultimately contest the case also. Therefore, considering all the facts of this case along with annexed documents and the evidence of the PW 2, we find that the mobile set purchased by the complainant form the OP No. 1 was a defective one since inception which could not be repaired. The defect was detected within the warranty period. So it is the duty of the OP No. 1 & 2 to replace a fresh mobile set in lieu of the defective one, but they did not do this. So it is a gross deficiency in service and unfair trade practice on the part of the OPs also. In view of the above discussions our considered view is that the complainant has become able to prove her case and she is entitled to get the compensation. In result the case succeeds.
Hence,
Ordered,
That the case, CC/09/68 be and the same is decreed on exparte against the OP No. 1 & 2. The OP No. 1 & 2 are directed to deliver a new Samsung mobile set to the complainant in exchange of the old defective one within a period of one month since this date in default the complainant is entitled to get back her purchase money of Rs. 1099/-. The complainant is also entitled to get Rs. 2,000/- as compensation for harassment caused to her and Rs. 1,000/- as litigation cost. The OP No. 1 & 2 are further directed to pay the decretal dues of Rs. 4099/- within the period of one month to this complainant since this date of purchase, in default the complainant is entitled to get interest upon the decretal dues @ 9% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
