DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.07/2017
Sunita Sharma
H-38, Ground Floor,
South Extension Part-1,
New Delhi - 110049 ….Complainant
Versus
M/s Royal Mobiles
10/2017, Malviya Nagar,
New Delhi - 110017
Samsung Service Centre
A-180 Maa Communication
Kotla Mubark Pur
New Delhi
Samsung India Electronics Pvt. Ltd.
20th to 24th Floor, Two Horizon Centre,
Sector-43, DLF Phase-V,
Gurgaon, Haryana ….Opposite Parties
Date of Institution : 09.01.2017
Date of Order : 08.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The present complaint has been instituted claiming deficiency in service in respect of a Samsung mobile phone purchased by the complainant. The complainant has impleaded three parties, OP No. 3 is the manufacturer of the mobile phone, OP No. 2 is the authorised service station of OP No. 3 and OP No. 1 is the shop from where the subject mobile phone was purchased.
The complainant has pleaded that she purchased the subject mobile on 25.12.2014 for a sum of Rs. 46,000/-. It is stated in the complaint that the subject phone was not up to the mark from the very first day. It is further stated that after about three to four months of purchase, the subject phone started having problems like hanging automatically, setting off and not responding. The complainant faced the problem with the mobile phone on 05.09.2015 and again in November 2015. The complainant has filed repair and maintenance charges invoice dated 05.09.2015 raised by OP No. 1.
In June 2016, the complainant again took the mobile phone to OP No. 2 however the subject mobile was returned with an estimated repair cost of Rs. 11,807.56/-. Further, the complainant in para 14 and 15 of the complaint has categorically stated that she received a call from the Chennai office of OP No. 3 wherein she was assured that they shall repair/replace the subject mobile and suggested her to visit OP No. 2. It is further stated that complainant delivered the subject mobile with OP No. 2 on 22.10.2016 and OP No. 2 is still in possession of subject mobile.
Reply has been filed on behalf of OP No.1 and 3, however as per order of this Commission dated 17.04.1998, evidence of OP No. 1 and 2 had been closed. Rejoinder has been filed on behalf of the Complainant. Evidence affidavit and written arguments of the Complainant and OP No. 3 is on record.
In their reply OP No. 1 has stated that they, merely being sellers of the product manufactured by OP No.3, are not liable for any defect in the product. It is also stated that there is no cause of action against them. Facts are not in dispute however it is stated that OP No. 1 had spoken to the OP Nos. 2 and 3 sometimes for replacement of the phone of the complainant, but it was not within his purview.
The primary defence of OP No. 3 is that it was the responsibility of the complainant to prove the negligence and in its absence the liability of the manufacturer is limited to removal of defect and/or replacement of parts. It is further stated that the complaint has failed to prove any negligence on the part of the OP No. 3 therefore no loss or injury can be said to have been suffered by the complainant. OP No. 2 has not filed its written statement.
The invoice in support of purchase filed by the complainant indicate that subject mobile was purchased for a sum of Rs. 36,000/- however vide the same invoice another mobile of Vivo was purchased for a sum of Rs. 9000/- thereby raising the invoice value to Rs. 46,000/-.
The repair and maintenance charges bill dated 05.09.2015 raised by OP No. 1 is indicative of the fact that subject mobile phone required repair within the period of warranty. OP No. 3 in its reply to para 14 and 15 above has given a cryptic and vague response which this Commission is of the view is not sufficient rebuttal of these allegations.
As far as the complaint of 2016 is concerned, as per OP No. 3, upon diagnose of subject mobile it was noticed that the mobile was damaged due to water clogging. Since the mobile was out of period of warranty, the estimated cost of repair was given and approval of complainant was sought, however, she refused to pay for the repair.
This Commission is of the view that the complainant has proved that subject mobile phone had issues in performance within the period of warranty. It is important to notice OP No. 3 has not led any evidence to prove that the subject mobile phone was damaged because of water clogging. In the absence of proof, this defence is unsustainable. It is however undisputed that repair beyond June 2016 is beyond the period of warranty. Besides, the subject mobile phone continues to be in possession of OP No. 2, who is a representative of OP No. 3, hence deficiency in service is made out against both OP No. 2 and OP No. 3.
Regarding the plea that the subject mobile phone is beyond the period of warranty, it will not absolve the manufacturer from carrying out the repair and replacement. At best, the customer is not entitled to free of charge repairs as has been held by the Hon’ble NCDRC in the matter of Honda Siel Cars India Limited vs Rohit Jain, Revision Petition no. 446 of 2013.
However, in this case, this Commission is of the view that since OP NO 2 continues to be in possession of the subject mobile phone since October 2016, OP No. 2 is liable to repair and handover to the complainant the subject mobile phone, upon payment of Rs. 11,807/- within three months from the date of communication of this order. In case, it is not possible to repair the subject mobile, OP No. 2 would be liable to replace it with another mobile phone manufactured by OP NO 3 having a current market value of Rs. 30,000/-. OP NO 2 is also liable to compensate the complainant for a sum of Rs 5,000/- as damages for holding on the subject mobile phone since October 2016. No order as to costs.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
