BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 03^rd DAY OF JUNE 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct the OPs to replace his mobile handset with new one together with compensation and cost of the litigation.

2. The brief averments made in the complaint are as under:

The complainant purchased a SAMSUNG handset from OP-3, a dealer on 17^th August 2013.  That the handset was not functioning well since from the first month of the purchase.  That after installing SIM the complainant started using the mobile but within few days he could not connect with the net and technicians at service centre told him that there is no any issue with the device.  That the complainant then changed the SIM as the same was defective.  Thereafter, it started functioning well and after sometime again it stopped working.  Thereafter the complainant changed the SIM from VODAFONE to DOCOMO.  After few days the camera of the handset stopped functioning.  The complainant took the handset to the service centre and they repaired it and gave it back.  Very next day mobile data signals were not displayed therefore he took the handset to service centre.  Though he was advised to change to 3G network but after a day or two without any change the complainant could connect the data with good speed.  On 11^th January the complainant found that the APPs are not working and JPG and Excel file were also not opening, WhatsApp was not opening.  The complainant went to the service centre as he was put to lot of inconvenience because of the said malfunctioning of the handset.  On 11^th around 4 PM the complainant got a call from service centre stating that the handset is repaired and kept under observation.  In the evening when he went to collect the handset, he was told that, the mother board was to be changed.  The complainant then requested the service centre to replace the handset with new one but they refused.  Then the complainant called the customer care service and after some time, the complainant was informed that the handset will be repaired by changing the mother board within three working days.  The complainant was not ready to take back the set after change of mother board as the set suffers with manufacturing defect.  The complainant repeatedly requested the OPs to replace the handset but they did not concede to his request.  The complainant has handed over the handset to the service centre and they promised him to repair it and return in two working days.  Again the complainant requested for replacement and the same was denied by the OPs.

The complainant has been put to lot of inconvenience and mental agony due to the defective handset and his profession has also been affected severely resulting in loss of productive output.

Therefore, the complainant prays for an order directing the OPs to replace the said handset with new one and to pay him a compensation of Rs.50,000/-.

3. OP-1 in response to the notice entered their appearance through their advocate and filed their version contending, in brief as under:

The complainant has suppressed the fact that, the handset is still lying with service centre despite being repaired and made functional.  The initial problem which the complainant faced was due to defective SIM and not due to any defect in the handset.  As and when the complainant has given handset for repairs the same has been repaired to the satisfaction of the complainant and returned to him.  The complainant has given handset for repairs only once as per the job sheet produced by him.  It is false to allege that the complainant has visited the service centre several times for repair of the handset.  That there is no any manufacturing defect in the handset since the replacement of the mother board was necessary and the same has been done and the handset is functional.  The problems which the complainant faced was because of the third party APPS which he downloaded in the handset.  The non function of the mobile phone was due to interruption from the third party application for which OP-1 cannot be held responsible in any manner.  That the complainant has failed to establish that, the said handset suffers with any manufacturing defect.  The complainant is not correct in demanding replacement of the handset for the reason that the mother board of the handset is changed.  The complainant without there being valid reasons abandoned the handset though it is functional.

For the aforesaid reasons, OP-1 prays for dismissal of the complaint.

4. OP-3 in response to the notice appeared through their advocate and filed their version contending in brief as under:

It is true that the complainant purchased a GRAND 1.1 Model-I-9082 mobile handset manufactured by M/s.SAMSUNG INDIA LTD., on 17.08.2013 from this OP shop.  This OP is only performing the role as a facilitator and is permitted to sell the mobile sets without opening the seal of the sealed container box.  The manufacturer M/s.Samsung India Ltd., is responsible for all the defects arising out of the mobile set which has been mentioned in the manual book as well as in the invoice issued to the complainant.  When the complainant complained about the defects in the handset he was directed to approach the authorized service centre.  This OP has taken all the necessary care of the complainant as and when necessary.  The manufacturer alone is responsible for any defect in the handset and this OP is nothing to do with the same.  Therefore, OP-3 prays dismissal of the complaint as against him.

5. OP-2 despite service of notice remained absent.  Hence placed ex-parte.

6. After the version was filed by the OPs.1 & 3 the complainant was called upon to file his affidavit evidence.  Accordingly, he filed his affidavit evidence reiterating the allegations made in the complaint.  OP-1 in support of their case got filed the affidavit evidence of their Senior Manager Sri.Srinivas Joshi S/o Jayanth Joshi.  OP-3 got filed the affidavit evidence of their Manager, Customer support Prathima W/o Joseph in support of the averments made in the version.  Both complainant as well as OP-1 filed their written arguments.

7. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        8. Perused the allegations made in the complaint, averments made in the version filed by OPs.1 & 3, sworn testimony of both the parties, written arguments and other materials placed on record.

9. Our answer to the above points are as under:

REASONS

10.  Admittedly, the complainant purchased a mobile handset manufactured by OP-1 from one of the retail outlets of OP-3 situated at Ganganagar, Bangalore.  The said handset is covered with one year warranty from the date of purchase.  The complainant alleges that when he started using the handset by installing a Vodafone SIM card, he faced problems in connecting to the Net and since the SIM card was defective he used duplicate SIM and after some time again he faced with very same problem.  Therefore, he changed over to DOCOMO and after few days camera stopped functioning.  Complainant claims that when he took his handset to the service centre, necessary repairs were attended and handset was returned to him and after 11^th of January the APPs were not opening and he was facing problem in using the handset.  Therefore, he went to service centre again for repairs. 

11. The complainant further claims that, though certain repairs were done at the service centre he was told that, the mother board of the handset was to be changed for proper functioning of the handset and ultimately the mother board was changed and he was asked to collect the handset.  Complainant claims that, he is facing problem with the handset repeatedly and necessity of changing the mother board itself indicates that, the handset is defective and therefore he sought for replacement of handset.

12. The learned advocate for OP-1 placing reliance on judgment reported in I (2010) CPJ 235 (NC) & I (2006) CPJ 92 (NC) argued that, despite the fact that, the mother board has been changed the handset is functional and is in good condition and the complainant can use it without any problem.  He further argued that, the handset does not suffer with any manufacturing defect and merely changing the mother board does not mean that, the handset suffers with any manufacturing defect.  Therefore, he prays for rejection of the complaint.

13. From the material placed on record, it appears to us that, the complainant started facing the problems in using the handset within a month from the date of purchase.  Once there was problem in getting Net connection and thereafter the camera stopped functioning and then the handset itself stopped functioning.  The defect in the handset was rectified only after replacement of the mother board.  All these defects which were in the handset have been noticed by the complainant within the warranty period only.

14. During pendency of the case, OP-1 offered to replace the handset with new one but the complainant insisted compensation along with replacement of the handset.  However, OP-1 was not ready to pay any compensation.  Therefore, the settlement could not be arrived at between the parties.

15. The complainant do claims that, he visited the service centre many times but has not produced relevant documents to substantiate the same.  The complainant has produced only one job sheet which is dated 11.12.2013.  No doubt as and when the handset is given for repairs in the service centre, the job sheet is issued.  In absence of job sheet we cannot accept that the complainant made multiple visits to the service centre.  However, the fact remains that, the handset suffered with certain defects for which the mother board was required to be replaced.  Looking to the facts and circumstances of the case and willingness of OP-1 to replace the said handset with new one, we are of the opinion that, a direction be given to replace the said handset with new one.  However, in the circumstances of the case, we feel it appropriate not to grant any compensation except the litigation cost of Rs.3,000/-.  OP-1 alone is liable to answer the claim of complaint.  Hence complaint filed against OPs.2 & 3 is liable to be dismissed.

16. The order could not be passed within the stipulated time due to heavy pendency. 

17. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OP-1 is directed to replace the handset in question with a new one within 30 days from the date of communication of this order together with litigation cost of Rs.3,000/-.

The complaint against OPs.2 & 3 is dismissed.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of June 2016)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 02.08.2014.

1. Sri.B.R Joshi.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-1 dated 23.10.2014.

1. Sri.Srinivas Joshi.

Witnesses examined on behalf of the Opposite party-3 dated 03.03.2014.

1. Smt.Prathima.  

Document produced by the Opposite party-1:

MEMBER                            MEMBER                       PRESIDENT

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