Date of Filling:      13.02.2017

                                                                                                                       Date of Disposal:  28.08.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:    R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.10/2017

TUESDAY, THE 28 DAY OF AUGUST 2018

Mr.V.Sridhar,

S/o.S.Vaithiyananthan,

No.13/16, Thiurmurthy Street,

Ram Nagar, Ambattur,

Thiruvallur District.

Chennai -600 003.                                             ……Complainant.

                                                  //Vs//

1.The Managing Director,

   Samsung India Electronic Pvt. Ltd.,

   No. A25, Ground Floor, Front Tower,

   Mohan Co-operative Industrial Estate,

   New Delhi -110 044.

2.The Proprietor,

   Shayam Electronics Service Centre,

   No.484/603, 1^st Floor MTH Road,

   Ambathur, Chennai.

   Thiruvallur District.

3.The Proprietor, Royan Sport & Gift Center,

    Mobile Show Room,

    No.397, C.T.H. Road, Ambattur (O.T)

    Chennai -600 053.

    Thiruvallur District.                                                      ……Opposite parties.

The complaint is coming upon before us finally on 20.08.2018 in the presence of Mr.A.R.Poovannan, counsel for the complainant and M/s.V.V.Giridhar, counsel for the 1^st opposite party and 2^nd and 3^rd opposite parties remained Ex-parte for non appearance and upon hearing arguments, having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY THIRU R.BASKAR KUMARAVEL, MEMBER.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to refund a sum of Rs.9,800/-towards cost of the Samsung mobile phone and a sum of Rs.1,00,000/- towards the damage and loss suffered to the complainant and a sum of Rs.1,00,000/- towards compensation for mental agony, hardship and strain, inconvenience due to the deficiency of service on the part of the opposite party and with cost.

2.The brief averments of the complaint are as follows:-

The Complainant on 02.09.2016 purchased a SAMSUNG J2 (2016) mobile bearingModelNo.SMJ210FZKDINSIMEINos.358993/07/448482/9&358994/07/448482/7 Color Black, Serial No. RZ8H70FYYAV (358993074484829) from the third opposite party and which was manufactured by the 1^st opposite party. The cost of the said SAMSUNG J2 (2016) MOBILE WAS Rs.9,800/-.  The said SAMSUNG J2(2016) was covered by service warranty of one year from the date of purchase.

3. That the said SAMSUNG J2(2016) was working well for about 3 months and later on it started giving trouble.  The said SAMSUNG J2(2016) had DISPLAY BLINKING problem and then became completely unusable within the warranty period of one year.  The complainant approached the authorized SAMSUNG mobile service center namely Shayam Electronics service centre/2^nd opposite party herein. The complainant submits that he entrusted the mobile phone to the 2^nd opposite party for repairs on 02.01.2017and he assured to rectify the problem within one week.  On believing the 2^nd opposite partys words and received the receipt of surrendering the SAMSUNG J2 10FZKDINS though it was informed that the service would be completed within a week but the 2^nd opposite party requested one more week to rectify the problem.  However the 2^nd opposite party not returned back the said mobile till today.

4. Though he made several phone calls to the 2^nd opposite party asking for the status of his mobile phone but there is no proper response except the formal replies and repeatedly requesting time. The attitude of the 2^nd opposite party shows that they are very irresponsible towards their customers especially to the complainant. The complainant is facing business problems (done by through mobile net connection) and lost some business and lapse schedule& financial problem and despite the gross manufacturing defects in the said equipment due to the gross deficiency in service and manufacture defects in the said equipment.

5. The complainant called to the 1^st opposite party through email and lodged a complaint against problem and the same was registered as complaint with reference No.3712289284 on 25.01.2017.  The 1^st opposite party promised the complainant to solve the problem shortly and therefore believed at the 1^st opposite partys words and waited for another week but the 1^st opposite partys words also turned untrue.  Then the complainant sent a second e-mail to the Customers support team of SUMSUNG India Electronic Private limited.  The complainant submits that the complainant sent a second mail to the 1^st opposite parties and there was no response from the 1^st opposite party.  The act of the opposite partys without any response is high handed, dereliction in duty and deficiency in their service.   Therefore the complainant is constrained to file this complaint for damage and compensation.

6. The contention of written version of the opposite party is briefly follows:-

 The 1^st opposite party denies the averment made in the para 5 of the complaint.  The 1^st opposite party respectfully states that, the complainant had handed over the mobile phone for service on 02.01.2017, and job card was also issued by the service center. At the time of receiving the mobile for service itself it was informed to the complainant that it would take time to rectify the defect as the service center has to completely check the mobile and only by agreeing to the same only the complainant had given the mobile for service. Therefore the allegation made by the complainant is perse false.

7. However despite several calls made by the service center, the complainant did not collect the mobile phone and was insisting for the replacement of the mobile phone with a new one.  As per the terms of the warranty the complainant is entitled to get the mobile repaired by the service center and only in the event of defect in the mobile phone cannot be rectified or the spare parts are not available then only the complainant is entitled for the replacement of new mobile phone.  In the present case the service center had rectified the defect and had informed the complainant about the availability of the mobile phone.

8. That at no point of time the complainant as made the complaint as alleged by him had it been true the complainant would have given the service complaint number.  The complainant is making false claim without any material evidence in support of the same and therefore the above allegations is liable to be rejected as not maintainable. In fact there is no cause of action arises on the bare reading of the complaint as against the opposite parties and therefore the above complaint is liable to be dismissed as not maintainable.

9. In order to prove the case, on the side of the complainant, the proof Affidavit submitted with evidence and Ex.A1to Ex.A7 were marked.  While so, on the side of the 1^st opposite party proof Affidavit filed but no document filed on their side.

At this juncture, the point for consideration before this Forum are:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10. Written argument filed and oral arguments also heard on both sides.

Point No:1:-

11. With regard to the case of the complainant is that, the complainant is doing construction work and social media work with mobile phone in and around the area where he resides. The complainant in connection with his business and social media work will interact with many persons and to respond the e-mails frequently through the mobile phone it was mandatory for the complainant to have a mobile phone with him.  Therefore, he is intended to the purchase a mobile phone and he has approached the 3^rd opposite party who is having sport and gift articles including mobile phone selling shop at No 397, C.T.H. Road, Ambattur(O.T), Chennai-53 Thiruvallur.

12. The complainant purchase the mobile phone Modal SAMSUNG J2 (2016) bearing No.SM-J210FZKDINS; IMEI No.358993/07/448482/9 &358994/07/448482/7 color Black Serial No.RZ8H70FYYAV (358993074484829) from the 3^rd opposite party which was manufactured by the 1^st opposite party and the 2^nd opposite party is the service center.  After purchasing the mobile phone from the 3^rd opposite party it was working well about for three months later on it stated giving trouble.  The said SAMSUNG J2 Mobile had DISPLAY BLINKING problem therefore the complainant is unable to use the mobile phone within the warranty period of one year.

13. The complainant approached the 2^nd opposite party for repair on 02.01.2017 and the 2^nd opposite party assured with the complainant that he will rectify the problem in the mobile phone and handed over the same within a week for which, the 2^nd opposite party issued a receipt to the complainant.  After a week, when the complainant was asked with the 2^nd opposite party to return the mobile phone the 2^nd opposite party made a request with complainant that the mobile phone was not serviced yet and asked for one more week time to rectify the problem by way of servicing mobile.  But till the filing of this complaint the 2^nd opposite party has not return the mobile to the complainant.

14. Even though, the complainant made several phone calls to the 2^nd opposite party to know about the status of mobile phone but there was no proper response.  Regarding this issue the complainant intimated the 1^st opposite party through email and lodged a complaint against problem in the mobile phone and the same was registered by the 1^st opposite party on 25.01.2017 with reference No.3712289284 and 1^st opposite party has promised with the complainant to solve the problem in the mobile phone shortly through phone conversation.  Believing at words of the 1^st opposite party the complainant waited for another week but no fruitful result from the 1^st opposite party and the defect in the mobile phone was also not rectified.  The complainant has not received the mobile phone from the opposite parties.  Therefore the complainant filed this complaint against the opposite parties as the opposite parties sold the defective mobile phone and not come forward to rectify the defect and also refused to refund the cost of the mobile thereby the opposite party has committed deficiency of service by selling the defective mobile.

15. At the outset it is the duty of this Forum to decide, whether the complainant has putforth his case by means of proper evidence and relevant documents before this forum in the acceptable manner.

16. In such circumstances, on careful perusal of the evidence of the complainant, it is stated that the complainant had purchased mobile phone which is touch phone on 02.09.2016 from the 3^rd opposite party for a sum of Rs.9,800/- bearing Modal No.SM-J210FZKDINS; IMEI No.358993/07/448482/9 &358994/07/448482/7 Color Black, Serial No. RZ8H70FYYAV (358993074484829).  The above said mobile was purchased by the complainant from the 3^rd opposite party with warranty period of one year.  The 3^rd opposite party issued a bill No.6284 dated 02.09.2016 which is marked as Exhibit A1 and the complainant after purchasing the mobile phone was using it for 3 months.  Later on, this mobile phone developed DISPLAY BLINKING Problem and complainant was unable to use the mobile phone to get it repair the complainant approach the 2^nd opposite party who is servicing center of the mobile phone.  The 2^nd opposite party received the mobile phone for servicing it from the complainant and gave the receipt of acknowledgement of service request which is marked as Ex.A2.  The 2^nd opposite party after receiving a mobile phone for servicing it neither serviced the mobile phone nor return the same to the complainant within the promised period by him.  Later on the complainant sent the email letter narrating the entire facts to the 1^st opposite party on 25.01.2017 which is marked as Ex.A3.  After receiving this email letter the 1^st opposite party promised to rectify the defect in the mobile phone but at last 1^st opposite party also failed in his promise with the complainant.

17. It is further stated that the complainant issued the letter through email to the customer care has been marked as Ex.A4 and Ex.A5 is the notice sent by the complainant through email to the opposite party and warranty card issued by the opposite party to the complainant marked on the side of the complainant Ex.A6 in order to prove the month and year of the manufacturing of the mobile phone which is marked as Ex.A7.

18. On the other hand, the 1^st opposite party has filed his written version and the 2^nd opposite party and 3^rd opposite party has not filed the written version they were set Ex-parte.  The 1^st opposite party in his written version admits the claim of the complainant that the mobile phone is defective one and 1^st opposite party is also admits that the mobile phone was received from the complainant for rectify the defects and pleaded that the mobile phone was repaired and intimated to the same to the complainant that the mobile is ready for use but there is no evidence produced by the 1^st opposite party in order to prove is plea in the written version has stated above. 

In all Consumer cases demand by Consumer or Complainant with opposite party is necessary this procedure has been adopted in this case by the complainant and sent a demand notice to opposite parties, but the opposite parties are not sent any proper reply to the demand of the complainant it clearly shows that the deficiency of service on the part of the opposite parties not come forward to rectify the defect in the mobile as per Section 2(0) of Consumer Protection Act.

19. The 1^st opposite party is also accept and admit that the defective mobile will replaced and with new one for the demand of the customer or complainant when the defect in the mobile cannot be rectified and also when the spare part are not available to replace the defective part in the mobile, in such circumstances only the defective mobile will be received back from the customer or complainant and the new one will be issued to the complainant according to the rules and regulation mentioned in the warranty card.  In these circumstances going into the facts and circumstances of the complainant case it is presumed that the defect in the mobile cannot be rectified, therefore, the complainant is entitled to get new one replacing the defective one by the opposite party but the opposite party failed to do so and thereby causing mental agony and financial loss due to the deficiency of service on the part of the opposite party.

20. Since, the seller also promises about the any immoveable object at the time of purchasing by the customer or complainant about the quality and quantity of the product.  If any defects or deficiency occurs in the product the seller is also liable to pay compensation.  At the outset, this Forum wants to enlighten that the complainant has proved deficiency of service of the opposite parties by means of acceptable and reliable consistent evidence available before this Forum on the side of the complainant.  Hence this Forum has not hesitated to conclude that the opposite party committed deficiency of service in selling   defective mobile and unable to rectify the defect in the mobile and thereby caused mental agony and professional loss to the complainant.  Thus the point no. 1 is answered accordingly.

Point No.2:-

21. In view of the discussion concluded in the point No.1 it would proper to order that the complainant is entitled for refund of the amount of purchase of mobile phone with reasonable interest from the date of complaint (13.02.2017) till the date of order (28.08.2018) and also compensation for the damages and mental sufferings with cost and thus the point no 2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1to3 is directed  to pay a cost of the alleged Mobile namely SAMSUNG J2(2016) to the tune of Rs.9,800/-(Rupees Nine thousand eight hundred only) and also to pay a sum of Rs5,000/-(Rupees Five thousand only)in total for causing damages, loss and mental agony due to the deficiency of service on the part of the opposite parties 1to3 and with cost of Rs.5,000/-(Rupees Five thousand only) towards the litigation expenses to the complainant.

The above amount shall be payable within one month from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the member to the steno-typist, transcribed and computerized by him, correct by the member and pronounced by us in the open Form on this 28^th August 2018.

     -Sd-                                                                                         -Sd-

  MEMBER                                                                         PRESIDENT

List of documents filed by the complainant:-

 List of document filed by the opposite parties:-

-Nil-

   -Sd-                                                                                           -Sd-

MEMBER                                                                                 PRESIDENT.