BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 43 of 2017
Date of Institution: 06.03.2017
Date of Order :- 01.10.2019
Surajchand Baraum aged 29 years s/o Naresh Kumar r/o Manan Paana House No. 468, Ward No.20 Bhiwani Tehsil & District Bhiwani.
….Complainant.
Versus
1. Rohtash Kumar, Manager, Samsung Mobile Service Centre, near DFC Non Veg Point, ICICI Bank, Dinod Gate, Ghanta Ghar Road Bhiwani-127021.
2. Ashok Kumar, Manager Ashoka Engineering, Samsung Mobile Service Centre, 136, Lajpat Nagar, Old Court Complex_Vigandhar Hisar-25001.
3. Sushma Sharma, Manager, Samsung India Electronics Pvt. Ltd.Tower-C, Second Floor Golf Course Road, Sector 43 Ph-V Gurugram-122202.
4. General Manager, Samsung India Electronics Pvt. Ltd. 20th to 24th Floor, Two Horizon Centre Golf Course Road, Sector-43, DLF, Ph.-V, Gurgram, Haryana - 122202.
…...Opposite Parties.
Complaint under Section 12 & 13 of the
Consumer Protection, Act, 1986.
Before: - Hon’ble Mr. Nagender, President.
Hon’ble Mr. Shriniwas Khundia, Member.
Present: Shri Sunil Goyal, Advocate for the complainant.
Opposite parties No. 1 to 3 already exparte.
Shri R.K. Verma, Advocate for the OP No. 4.
ORDER: -
PER NAGENDER SINGH, PRESIDENT
Brief facts of the complainant’s case are that his phone Samsung Das-5(5M-900H) is lying in Bhiwani Samsung Mobile Centre since 02.02.2017 and its motor board and PBA Board have been replaced number of times but the mobile phone did not work. The complainant had purchased the phone online from Flipkart sold by W.Dass Retailer for a sum of Rs.13999/- but the phone did not work properly despite the fact that the phone was in warranty period. The officials of the service centre also did not bother to the grievance of the complainant and failed to do the needful. The act and conduct of the Opposite parties clearly amounts to deficiency in service on their part. The complainant has tendered documents Annexure C1 to Annexure C3 on the case file.
2. On notice, no one appeared on behalf of opposite parties No.1 to 3 despite issuance of notice through registered post and they were proceeded against exparte by the Forum vide order dated 25.05.2017.
3. OP No.4, on appearance, filed its written statement wherein where several preliminary objections such as cause of action, territorial jurisdiction, concealment of material facts and locus standi etc. have been taken. It has been further submitted that on 17.12.2016, the complainant had lodged complaint vide complaint No.4227454092 with some MIC issue and after that necessary rectification was done and PBA of the unit was replaced. The complainant thereafter approached the service centre on 12.01.2017 vide complaint No.4228988634 with problem of low battery. The phone was handedover to the complainant after necessary rectification and again the complainant approached the service centre on 02.02.2017 with problem in display but on checking the unit was found damaged due to mishandling on the part of complainant. The unit was out of warranty, therefore, the complainant was asked for repairing the same on chargeable basis. The complainant again visited the service centre on 22.02.2017 and agreed for paid repair and deposited the unit for repair. The service centre contacted the complainant after repairing the unit but the complainant intentionally did not take the delivery of the unit and refused to do the same. Other contentions have been controverted and prayer for dismissal of the complaint has been made. The Opposite party No.4 has tendered documents Annexure R1 to Annexure R3 in evidence.
4. We have heard ld. counsel for both the parties at length and gone through the case file carefully.
5. The complainant had purchased the mobile in question vide retail invoice (Ex.R3) on 11.08.2016 for a sum of Rs.13999/-. The plea of the complainant is that the mobile phone was not working properly, therefore, some parts thereof such as motherboard etc. have been changed number of times but till today the mobile phone is not working properly and the Opposite parties have failed to redress his grievance, due to this he has to knock at the door of this Forum. In support of his contentions learned counsel for the complainant has drew the attention of this Forum towards documents Annexure C1 to Annexure C3 (correspondence between the complainant and Opposite parties through email and job sheets).
6. On the other hand, learned counsel for the Op No.4 has argued that the complainant is a habitual in filing false complainants in order to take undue advantage of Consumer Protection Act. The grievances of the complainant had been redressed on every occasion but on 02.02.2017 when the mobile handset was brought to the service centre, it was found in damaged condition, hence, the same was on chargeable basis. The complainant was intimated for taking the delivery of the phone but he intentionally did not rook the delivery of the unit and refused to do so. There is no deficiency in service on the part of the Opposite parties.
7. Undisputedly, the complainant has to approach service centre time and again for the repair of the phone as is evident through job sheets dated 17.12.2016, 12.01.2017 & 02.02.2017. The job sheets issued by the authorized service centre of the Opposite parties and even the OP No.4 in its reply has admitted that the phone has been repaired and some parts have been changed, therefore, a presumption is to be drawn that the mobile set is having manufacturing defect and the complainant has to suffer financial and physical loss as well as mental harassment for visiting several times to the service centre. The pleas taken by the Opposite parties that the complainant is habitual in filing false complaints and the mobile phone was physically damaged when the same was brought to the service centre on 22.02.2017 is not sustainable as the Opposite parties have failed to lead any evidence in support of these pleas. In the present complaint, the complainant has prayed that either the phone be changed with new one of the same model and cost or to refund the cost of the same. Undisputedly, the complainant has used the mobile in question for some time, therefore, we can rely upon the authority decided by Hon’ble State Commission, Haryana bearing first appeal No.460 of 2014 decided on 28.05.2014 titled as Deepjot Singh Vs. The Mobile Store. In the said authority, the Hon’ble State Commission has allowed the refund of cost of the mobile after making deduction of 30% as the mobile set was used near about one year. The said authority is fully applicable to the facts of the present case. Since, the complainant had used the mobile set in question for sometime, so, keeping in view the above citation, we are of the considered opinion that the interest of justice will be met if the cost of mobile set be ordered to be refunded after making 25% depreciation of the same.
8. Thus, as a sequel of above discussion, we allow the complaint and direct the Opposite parties to pay Rs.10499/- the cost of the mobile set after deducting 25% depreciation out of the total amount i.e. (Rs.13,999/-). The Opposite parties are further directed to pay Rs.2,000/- as compensation on account of harassment and Rs.2,000/- as cost of litigation expenses. All the Opposite parties are jointly and severally liable to comply with the order within 30 days, failing which, the complainant shall be entitled for interest @ 9% p.a. from the date of commencement of order till its realization on the 75 % amount i.e. Rs.10499/-. A copy of this order be sent to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum.
Dated: - 01.10.2019.
(Shriniwas Khundia) (Nagender Singh)
Member President,
District Consumer Disputes
Redressal Forum, Bhiwani.
Present: Shri Sunil Goyal, Advocate for the complainant.
Opposite parties No. 1 to 3 already exparte.
Shri R.K. Verma, Advocate for the OP No. 4.
Arguments heard. Vide order separate order of even dated, present complaint is allowed. File be consigned to the record room.
Member President/DCDRF/ Bhiwani/01.10.2019
