Date of Filing: 10-08-2015 Date of Final Order: 23-08-2016
Sri Debangshu Bhattacharjee, Member.
The gist of the complaint as culled out from the record is that the Complainant purchased a Samsung Mobile phone particulars are given below from the O.P. No.1, Roy Plaza, Cooch Behar on 11/07/2015 amounting to Rs.15,500/- and the O.P. No.1 assured the Complainant that they will render proper service towards the Complainant.
Particulars of the Mobile Set :-
a) Model - SAMSUNG G7102H (grand-2)
b) Make – SAMSUNG
c) IMEI NO. 353202/06/936134/8
d) Battery - RZIG61ZM9BF
From the date of purchasing the said mobile handset giving disturbance to operate functioning and Bluetooth Device did not work properly. Thereafter, the Complainant went to the O.P. No. 1 for changing the said Mobile Phone but the O.P. No.1 refused for changing the same.
Afterwards, the Complainant contacted with the O.P. No.2, i.e. Maa Padmawari Tele Solution and also contacted online through SMS No.54242 on 30/07/2015 at about 2.26 p.m. vide. Complaint No.8454231387 and narrating the incident with the requested to replace the defective mobile or solve the said defects but all efforts were in vain for which the Complainant is in hard-up and facing hindrance as well irreparable loss due to malfunctioning of the said Mobile phone.
It is pertinent to mention here that at the time of purchasing the said handset, the O.P. No. 1 did not issue the warranty card in favor of the Complainant and the said defects were arisen within the warranty period.
Due to such activities of the O.Ps the Complainant also suffered from acute mental pain and agony, pecuniary loss and unnecessary harassments. There was also deficiency in service and unfair trade practice adopted by the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps for replacement of the Mobile Phone free of cost or for refund of value of the Mobile Phone. i.e. Rs.15,500/-, and also to pay (i) Rs.15,000/- as compensation for business loss, mental pain and agony and unnecessary harassment, (ii) Rs.15,000/- for deficiency in service and unfair trade practice and (iii) Rs.5,000 /- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, The O.P. No.1, Roy Plaza, Cooch Behar has contested the case by filing a petition dated 06/11/2015 denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P is that the Complainant purchased a Samsung Mobile Phone (Galaxy Grand 2) on 11/07/2015. On 19/07/2015 the Complainant came to the O.P. No.1 with a complaint that the Bluetooth on that phone does not working and the O.P. No.1 immediately contacted with Samsung Care and asked them for replacement the same. But Samsung Care replied that replacement period of this mobile is over and as the said mobile has warranty, they will fix this problem by replacing the motherboard of the said mobile. Accordingly, the O.P. No.1 suggested the Complainant to do the same as alleged by Samsung Care, but the Complainant refused to do the same as this mobile is only 8 days old from the date of purchase. As the Samsung Mobile India covers the warranty of the said mobile, the O.P. No.1 is not liable for the warranty issue. Therefore, there was no deficiency in service and unfair trade practice on the part of the O.P. No.1.
Ultimately, the O.P. No.1 prayed for dismissal of the case without any costs.
The O.P. No.2, Maa Padmawati Tele Solution, Cooch Behar has appeared with a petition dated 06/11/2015 and mentioned in the said petition that the Complainant came to the Office of the O.P. No.2 for DOA but he is not come in DOA Policy as its cross the DOA date as per the Company Policy. So, the O.P. No.2 requested the customer/Complainant for repair but the Complainant refused the same. Therefore, In the present case, no fault from the end of the O.P. No.2. Even, the O.P. No.2 is still ready to repair the said mobile of the Complainant as it is in warranty period.
Ultimately, the O.P. No.2 prayed for dismissal of the case without any costs.
In this case after filing such a petition, the O.P. No.2 did not appear before this Forum for which the case proceeded in Ex-parte against the O.P. No.2.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also heard both the parties at a length. Perused the entire relevant documents of the parties in the record along with Written Argument filed by the Complainant and O.P. No.1.
Point No.1.
Evidently, the Complainant purchased a SAMSUNG –G7102H (Grand-2) Model mobile set of Rs.15,500/- from Roy Plaza (O.P. No-1). The O.P. No.2, MAA PADMAWATI TELE SOLUTION is the service centre of Samsung mobile phone.
So, relation between the complainant and the O.P. No.1 & 2 so established from the record we are convinced to hold that the Complainant is the consumer of the Opposite parties.
Point No.2.
O.P. No.1, Roy Plaza, seller of the mobile set and O.P. No.2 Maa Padmawati Tele Solution, service centre of Samsung Mobile phone have their office at Cooch Behar town.
The Valuation of the case is far less than the prescribed limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try the case.
Point No.3 & 4.
From the discussion herein before, we transparently find that the complainant and O.P. No.1 submitted written version, evidence on affidavit and written argument. In case of OP-2 submitted only the written version. Both the OPs are admitted the fact in their written version that there is some problem in the new mobile hand set which the complainant purchased from the OP no-1. In his written version OP-1 describe that” Mr. Prokash Mitra purchased a Samsung mobile (Galaxy Grand 2) on 11/07/2015. On 19/07/2015he came to our shop with a complain that the Bluetooth on this phone is not working”. From this statement of the OP-No-1, it is established that the complainant starts to face problem with his New Mobile handset within Eight (8) days of purchasing the mobile phone.
We do not find any documents as to the warranty of the said hand set but it is fact that the set was faced problem within short period of purchase that is also admitted and it can be reasonably presume that the dispute cropped up within the warranty period and as such the Complainant is entitled to get proper service from the service provider.
In the Written version, OP-1 also admitted the fact that he personally makes contact with the O.P-No-2, Maa Padmawati Tele Solution, service centre of Samsung Mobile Phone and OP No-2 replied that “They will fix the problem by replacing the MOTHER BOARD of the said mobile”. From this fact it is been proved that the the mobile set has manufacturing defect from the beginning.
The complainant in his Evidence on affidavit claimed that “I contact with O.P-No-2 Maa Padmawati Tele Solution and also contact online through SMS No 54242 on 30/07/2015 at about 2.26 p.m vide complaint no- 8454231387and narrating the incident with the requested to replace the defective mobile or solve the defect”. In his written version OP-2 totally suppressed the matter and never appeared in this forum to condemn the claim of the complainant.
From the discussion made herein before, we find that the problem in the mobile hand set cropped up within the warranty period and as per version of the O.Ps it is established. Within eight days of purchased the mobile phone the Complainant placed complain to the Seller (Op-No-1) the complainant also file complain before the service centre (OP-No-2) for which it is reasonably be presumed that the said set has some inherent defect. In view of ruling reported in 2014 CJ 402 (NC), The Company is liable to replace the defective set or make return the price of the said goods. Here in this case the seller (OP No-1) is the Sole representative of the company who sell the product to the consumer on behalf of the company. It is the duty of the service provider to render proper service to the customer free of cost within the warranty period as per warranty conditions. As and when the problem cropped up within the warranty period (After eight days of purchasing the product) the consumer has every right to go service centre to avail proper service.
The Maine Uniform Commercial Code gives the consumer every right to “Reject” Merchandise and have your money refunded or the item refunded whenever the goods “fail in any respect to conform to the contract” For example, you can immediately “reject” a defective item if it breaches the seller’s express warranty even if the defect is minor.
In the light of foregoing discussion and documents made available, we are bound to hold that the O.P. No.1 & 2 guilty of deficiency in service by not taking proper steps even the complainant registered his complain within Eight (8)days of purchasing the Mobile Phone. Further, the O.P. No. 2 did not come forward to contest the case even after filing their written version.
The prayer of the Complainant is to return back the total purchased amount of the disputed hand set or replacement of the Mobile phone with compensation by the O.Ps. In this juncture, it is also pertinent to mention that only being the service provider the O.P. No.2 has no liability to return back the cost of the Mobile only the Company or its authorized dealer is liable to return the price of the set with compensation to the Complainant.
On the basis of upper mention fact it is easily said, that only refund of the cost of the mobile hand set will met the justice as and when it is already decided in a case reported in 2009 CTJ 180 (CP) (SCDRC) that- in a dispute of a defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution as such goods may not be up to the satisfaction of the consumer.
As it is already proved that the Complainant is the Consumer and the Opposite Party No. 1&2 are guilty of deficiency in service, we decide the case in favour of the Complainant without any hesitation and allowed reasonable relief as per law.
Hence,
it is ORDERED that,
The complaint is allowed in Ex-parte against the O.P. No.2 with cost of Rs.2,000/- and also allowed on contest against O.P. No.1 with cost of Rs.2,000/-. The O.P. No.1 is directed to refund the amount of Rs. 15,500/- as cost of the said Mobile Hand Set. Complainant is directed to refund the mobile hand set to the O.P. No.1 (Seller) after receiving the decretal amount from O.P-1. Both OPs are directed to pay Rs.2,000/- etch to the complainant as compensation for their deficiency in service. The Opposite Party No. 1&2 is hereby directed to comply with the order within 45 days failure of which the O.P. 1&2 shall have to pay @ Rs.50/- for each day’s delay by depositing the accrued amount if any in this regard, in the State Consumer Welfare Fund, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
