DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 14th day of August, 2018
Present:-
1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 56 of 2017
Sk. Md. Aktar. Ali
S/o Late Sk. Md. Mahemood Ali
Vill: Sankarpur
Po/Ps: Purunabazar
Dist: Bhadrak, Odisha
……………………. Complainant
(Versus)
1. Proprietor
Panda Communication
Rajghat Chhack, Bhadrak
2. SAMSUNG INDIA ELECTRONICS Pvt. Ltd.
2nd Floor, Tower- C, Vipul Tech Squarte
Sector- 43, Golf Course Road, Gurgaon
Haryana- 122002
3. SAMSUNG AUTHORIZED SERVICE CENTRE
At: Mathasahi, Near Bank of Boroda
Bhadrak- 756100
…………………………..Opp. Parties
Counsel for Complainant: Sri S. Mohanty & Others
Counsel for OP No. 1: In person
Counsel for OP No. 2: Sri M. N. Sharma
Date of hearing: 08.01.2018
Date of order: 14.08.2018
SRI RAGHUNATH KAR, PRESIDENT
This dispute arose out of a complaint filed by the complainant alleging deficiency of service against the O.Ps.
That, the complainant on 04.07.2017 went to the shop of OP No. 1 and asked him to show him some good quality mobile phone. OP No. 1 suggested that Samsung mobile phone would be best suited to him. As per the advise of OP No. 1 the complainant purchased a Samsung mobile from OP No. 1 on payment of the consideration amount of Rs 5,500/- (Rupees five thousand five hundred) only. On 21.07.2017 means after 13 days of use, the mobile failed to be switched on. The complainant rushed to the OP No. 1 and he advised the complainant to show the handset to OP No. 3. The OP No. 3 received the said handset and prepared a “Acknowledgement of service request” on the same day. He checked the bills and the handset and said that the said handset was coming under the DOA (Dead on Arrival) period. Accordingly one S. Pati the service centre manager wrote ‘Under DOA Period’ on the face of the acknowledgment of service request and assured the complainant that as the handset shows an inherent manufacturing defect and the same defect cropped up within 15 days, the set would be completely replaced with a new one.
The cause of action arose on 21.07.2017 which date the handset had gone out of order. In spite of several requests made by the complainant to the OP No. 3 no fruitful action was taken. Although the OP No. 3 had received the said handset from the complainant and assured him either to repair the manufacturing defects of the said handset or to replace by a new one but in spite of several reminder no action was taken up.
In view of the aforesaid facts it is presumed that the OP No. 1 & 2 have caused deficiency of service against the complainant.
Hence the complainant has sought for the reliefs:-
1. The O.Ps be directed to refund Rs 5,500/- as cost of the handset to the complainant.
2. They may be directed to pay interest @ 18% PA.
3. The O.Ps be directed to pay Rs 50,000/- towards mental agony and harassment to the complainant.
4. The O.Ps may be directed to pay Rs 2,000/- towards cost of the litigation to the complainant.
The complainant has filed the following documents:-
1. Original money receipt vide No- 1761- 1 sheet.
2. Xerox copy of acknowledgement service request on dt. 28.07.2017 – 1 sheet.
3. Xerox copy of acknowledgement service request on dt. 21.07.2017- 1 sheet.
The OP No. 1 appeared to his concerned advocate and filed the written version as follows:-
The OP No. 1 has challenged the maintainability of this case as well as the cause of action, preview and jurisdiction of this Forum, limitation, suppression of material facts, lack of affidavit, and subsequently he has prayed for the dismissal of this case. The OP No. 1 has also challenged that the complaint suffers with mis-joinder and non-joinder of parties. He has admitted that the averments of the Para 1 to 7 are partly wrong and partly correct. He has also denied that he has sold a defective mobile to the complainant and caused deficiency of service towards him. The OP No. 1 has averred that the present OP has sold a Samsung mobile handset to the complainant and issued a bill handed over warranty card and its accessories. That, Samsung Company provides warranty for Samsung product, during the warranty period through its Authorized Service Centre, free from charges. They are only competent person concerned for remedy of defect during the warranty period. It also reveals from warranty card that there is also certain conditions, one of the condition is also repairs under warranty period shall be carried by the company authorized person only and also it is the responsibility of the purchaser to contact the nearest authorized service centre and bring the unit to the authorized service centre at purchaser’ cost and risk. That, the bill issued by the present OP to the complainant also indicates that “all warranty support will be provided by manufactures authorized service centre”. However, the present OP requested to the complainant to approach Samsung Authorized Service Centre for remedy of defect, if any, during the warranty period. The copy of the said perform bill is annexed here with as Annexure- 1. He has further averred that the complainant does not come under the preview of “Consumer”, the dispute is not a consumer dispute within the meaning of Sec- 2(1) of the CP Act. Hence he has prayed for the dismissal of the complaint. He has relied upon certain documents but he has not filed those documents in this case and no document is available with the case record for perusal of the Forum.
The OP No. 2 has filed his written version without any relevant documents as follows:-
That, the complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the CP Act as there is neither any manufacturing defect proved in the mobile in question nor any deficiency in service or unfair trade practice being established against the OP, hence the averments or allegations made therein are frivolous, baseless and misconceived and the complaint is liable for rejection and the same may kindly be rejected in totality. He has denied the averments made in the Pare- 1, 2, 3 and 4 of the O.Ps just cleaned dust from the handset and updated the software under the terms of warranty and in this respect the complainant also gave satisfaction note in witness to satisfactory working of mobile set handset. The handset was immediately handed over to the complainant and the complainant before taking back his handset thoroughly checked the working of handset and after satisfying himself regarding working of handset and after satisfying himself regarding working of handset signed the SATISFICATION NOTE as follows:-
It is submitted that the complainant has lodges his complaint. On inspection carried out by the service centre, no defect was found. The complainant demanded for refund. The service centre has told him that the refund is not possible under the terms of warranty as the complainant’s mobile is working fine. The refund/replacement is only possible if the defect is of such a nature which cannot be removed by replacing the parts and requisite repair. But the complainant was adamant towards his illegal and unjustified demand. The complainant has tried to exerting the pressure on answering OP by threatens of loading the complainant with Hon’ble Forum. But the answering OP was unable to fulfill the unjustified and unlawful demand of the complainant as the same was not permissible under the terms of warranty.
Hence he has prayed for the dismissal of the complaint. He has filed no documents on behalf of him to his supporting to his stands.
The OP No. 3 has been set ex-parte and has not filed any documents in support of his stands.
ORSERVATIONS
We have perused the facts of the complaint, documents filed by the complainant as well as the facts of the written version filed by the OP No. 1 & 2. We have observed that the complainant have purchased the mobile under the trade mark of SAMSUNG company from the OP No. 1 on payment of the consideration of Rs 5,500/- on 09.07.2017. It is also fact that on 21.07.2017 the said mobile had gone out of order. The complainant lodged a complaint regarding this matter before the OP No. 1, the later advised the former to show the hand set to the OP No. 3 which the authorized service centre of SAMSUNG mobile. The OP No. 3 received the hand set and prepared a “Acknowledgement of service request” on 21.07.2017. The OP No. 3 checked the bills as well as the hand set and repaired that it was coming under the date on arrival period. Accordingly the manager of the service centre wrote the same word “Under DOA period” on the face of the acknowledgement of service request and assured the complainant that as the hand set shows a inherent manufacturing defect and the same cropped up within 15 days, the set would be completely replaced with a new one. On 28.07.2017 the OP No. 3 handed over the repaired phone to the complainant refusing complete replacement. In this manner both the OP No. 1, 2 & 3 have caused deficiency of service towards the complainant. The OP No. 1, 2 & 3 have also breached the agreement as well as the warranty. The OP No. 1 & 2 have failed to submit the enforceable documentary evidence to prove there non accusation and innocence. The OP No. 3 has tried to be escaped from the cause of deficiency of service. Hence he has neither appeared nor filed the written version as well as the documents in this Forum. So he has been set ex-parte.
According to our observation we have reached in the findings and conclusion that all the O.Ps are equally liable for the deficiency of service. Hence it is ordered;
ORDER
In the result, the present complaint is allowed against OP No. 1 & 2 on contest and ex-parte against OP No. 3. All the O.Ps are directed to pay Rs 5,500/- to the complainant towards the cost of the Samsung mobile hand set in question. They are also directed to pay Rs 2,000/- towards the mental agony and suffering as well as Rs 1,000/- towards cost of the litigation. The O.Ps are further directed to carry out this order within 30 days on receipt of the said order.
This order is pronounced in the open Forum on this day of 14th day of August, 2018 under the seal of the Forum.
