Punjab

Sangrur

CC/7/2019

Rajni Gupta - Complainant(s)

Versus

Samsung India Electronic Pvt. Ltd. - Opp.Party(s)

Sh.Azadvinder Ashta

28 Oct 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

                                                                        Complaint No. 7

 Instituted on:   07.01.2019

                                                                         Decided on:     28.10.2021

 

Rajni Gupta wife of Sh. Navneet Bansal, resident of Ward No.10, Peer Banabanoi Road, Sunam, Tehsil Sunam, District Sangrur.

                                                          …. Complainant.     

                                                 Versus

1.             Samsung India Electronics Pvt. Limited, B-1, Sector 81, Phase-2, Noida, District Gautam Budha Nagar (UP), through its Managing Director.

2.             M/s. Gaurav Communication, 1^st Floor, Inside Gaushala Road, Sangrur through its Proprietor.

3.             Maya Telecom, Naya Bazar, Sunam Tehsil Sunam, District Sangrur through its Proprietor/Partner.

             ….Opposite parties 

 

For the complainant  : Shri Azadvinder Ashta, Adv.              

For the OP No.1       : Shri J.S.Sahni, Adv.

For OP No.2&3         : Exparte.

 

Quorum                                          

S.P. Sood, President

Vinod Kumar Gulati, Member

Sarita Garg, Member

 

ORDER BY:     

S.P. Sood, President.

1.             Complainant Smt. Rajni Gupta has approached this Forum/Commission alleging inter-alia that she purchased one Samsung Note-8 mobile phone bearing IMEI number 352016/09/132572/0 and 352017/09/132572/8 from OP number 3 i.e. M/s. Maya Telecom, Sunam, District Sangrur and bill number 327 dated 7.12.2017 was also issued in her favour after she tendered price of the set as Rs.66,900/-.  Further complainant has alleged that at the time of purchasing the mobile set, OP number 3 gave warranty for the said product for one year against any defect on account of manufacturing or poor workmanship from the date of its purchase. However, in the month of August/September, 2018, the said mobile phone started giving problem i.e. “calling time auto hand free”, which used to embarrass complainant as she was not able to use the mobile set while sitting amongst her family members.  As a matter of fact complainant started feeling handicapped in this respect when it became impossible for her to use the above said mobile set in and around other fellows. Faced with this situation, the complainant approached OP number 3 and brought it to their notice regarding the problem being faced by her which in turn advised her to approach authorized service centre of the Samsung company i.e. M/s. Gaurav Communication, 1^st Floor, Inside Gaushala Road, Sangrur for its rectification.  Acting on above said advice, the complainant approached OP number 2 on 22.10.2018 with a specific request to repair the above said defect in her mobile set where job sheet dated 22.10.2018 was also issued to her. However, when complainant again approached OP number 2 i.e. service centre, various officials manning the same handed over the said mobile set back to the complainant and also explained as to how they got a new software installed in her mobile set and also assured her that the same will not give any such problem in future.  Since at that occasion, this mobile set was covered under full warranty period, she was not made to pay anything for all this. However, to her utter surprise may be 10-15 days thereafter her mobile set again started giving the same problem following which she approached OP number 2 through Shri Ashwani Kansal with a complaint of recurrence of the same problem and also requested them to repair the said mobile set again so that it should not have any such problem in future.  Even at that point of time again job sheet dated 29.11.2018 was also issued alongwith token number S-13 but whatsoever was mentioned in the said job sheet that was totally against the actual problem being faced by the complainant regarding the said mobile set and instead thereof the concerned officials made some vague entries therein.  Even it was also alleged that in case the above said mobile set did not have any problem then why the complainant would have thought of sending/handing over her cell phone to the service centre people despite her having spent almost Rs.66,900/- on purchase of the same without any reason. It was also alleged that since the OP number 2 was trying to shirk from their responsibility of either fixing the problem or to declare the said mobile set to be suffering from some manufacturing defect that is why they had made undesirable note in the said job sheet.  Even thereafter the complainant herself or through other associate requested on several occasions to either repair her mobile set or in case the same was not possible then OPs should give her a new mobile set or to reimburse its price but all in vain.  Before concluding the complainant also alleged that after the OPs were not heeding her repeated requests then she  got served a legal notice served upon them on 1.12.2018 but the same was also responded vaguely on 5.1.2019. However, again when no steps were taken by the OPs then she was constrained to file the present complaint seeking directions to the OPs either to refund the purchase price of the defective mobile set i.e. Rs.66,900/- along with interest @ 18% per annum from the date of purchase till its realization or to replace mobile set with a new one as they were found to be deficient in their services. Alongwith this the complainant has also sought recovery of a sum of Rs.25,000/- on account of mental agony and harassment and a sum of Rs.5500/- as litigation expenses.

2.             In pursuance to the notice, OP number 1 appeared in this Commission and submitted its written response, whereas no such reply was filed on behalf of OP number 2 and 3.

3.             Op number 1 assailed this complaint on the ground of misjoinder on account of the OPs being sued despite no cause of action had arisen to the complainant against them.  Even complaint was also alleged to be result of clever and mischievous intention on the part of the complainant aiming for undue enrichment at the cost of the OPs by filing this frivolous complaint precisely for the reason that the mobile set in question belonging to the complainant has no defect in the same as alleged by the complainant. Even the complainant was also alleged to have concealed true and material facts from this Commission and she has not approached with clean hands.  The complainant was stated to have filed this complaint on the basis of false and unfounded assertions despite the said mobile set being rendering perfect service and the same being in good working condition. Even it was also alleged that the complainant has no cause of action at all to file this complaint for a pure and simple reason that the obligation of the OP under warranty was subject to various terms and conditions as reflected in the said warranty card.  In fact performance of the mobile set depends upon the physical handling of the product and in the case in hand the complainant was not found to be using her mobile set perfectly as per the specifications.  No such assurance to replace the mobile set was given by the answering OP under the terms and conditions of the warranty and as such the complainant cannot claim anything over and above what was agreed to her at the time of purchasing this set.  Even otherwise also, the complainant has not disclosed of her mobile set to be suffering from irreparable manufacturing defect or that of inferior quality on their part and as such has not produced any documentary evidence or authenticated report from any independent expert or qualified person of Central Approved Laboratory to support her contentions and as per requirements and in the absence of any duly qualified and expert evidence the complaint cannot be allowed.  Moreover, when the complainant claims that her mobile set was suffering from defects and for that reason also she was under the bounden duty to discharge this onus herself and to establish her contention with the support of technical expert report but what to talk of doing needful in this regard even she did not get her mobile set examined from any such expert and obtained a report in this regard.  So there was no deficiency in services or breach of contract by the answering OP which otherwise also not deficient to provide her after sale service, as such, the complaint being devoid of any merit deserves to be dismissed.

4.             In addition to the legal objections, while answering various averments in para wise manner, it was also alleged that though it is not in the specific knowledge of OP number 1 that if the complainant had purchased any such mobile set from OP number 3 vide bill number 327 of even date, Samsung Mobile Note-8 for Rs.66,900/-, still complainant cannot be permitted to raise baseless allegations.  In fact it is palpably false that the mobile set purchased by the complainant started giving trouble in the month of August/September,2018 as alleged in the complaint.  In fact there is no merit in the said contention for a simple reason that the said mobile set is still in a perfect working condition. It is all a matter of record that on 22.10.2018 her mobile set was allegedly  giving problem of shifting in auto hand free mode during calling time as when the said mobile set was checked by the service engineer, there was no such defect in it as pointed out by the complainant and virtually this mobile set was returned to the complainant in OK condition.  Likewise the assertion put fourth by the complainant  that after taking back the mobile set from the service centre after 22.10.2018 the same again started giving her problem which compelled her sending it back to the service centre through Shri Ashwani Kansal on 29.11.2018.  Even in the job sheet pertaining to 29.11.2018, after the said mobile set was found to be in working condition in all respect this fact was recorded in the job sheet that despite this mobile set was in working condition still the same was retained in the service centre at the insistence of the depositor.  Even at that occasion and thereafter again concerned officials of the OP gave actual demonstration to the representative of the complainant by placing a call on the said mobile set without any such problem in its automatically shifting to hand free mode.  Despite all these demonstrations, the complainant or her representative were not found to be keen to accept the mobile set back and this is how on account of complainant herself or through any of her representative having refused to take back the same, the mobile set is still lying with the OP number 2 i.e. Samsung Company’s service centre and complainant is well within her rights to take it back whenever she desires.  This is how the complainant is not coming forward to collect her mobile set i.e. why the same could not be delivered.  Besides this all other averments of the complaint were denied and ultimately prayer for dismissal of the complaint was made.

5.     It is also pertinent to mention here that no such written reply on behalf of OPs number 2 and 3 were filed but some how or the other Shri Gaurav Kumar son of Shri Rattan Lal, Manager/Incharge of Op number 2 i.e. M/s. Gaurav Communications, Sangrur has tendered his affidavit Ex.OP1/9 and affidavit of Shri Anup Kumar Mathur as Ex.OP1/8 on behalf of OP number 1.

6.             After completion of the pleadings  authorized counsel for the complainant tendered on record complainant’s sworn affidavit Ex.C-1, copy of bill dated 7.12.2017 Ex.C-2 issued by M/s. Maya Telecom in favour of the complainant showing of the latter having purchased mobile set Samsung Note-8 for Rs.66,900/-. Ex.C-3 copy of job sheet dated 22.10.2018, Ex.C-4 copy of job sheet dated 29.11.2018, Ex.C-5 that of token number S-13 issued in lieu of complainant having deposited the mobile set with the service centre, Ex.C-6 copy of legal notice retained by the learned authorized counsel of the complainant alongwith postal receipts Ex.C-7 to Ex.C-9 and reply received by the complainant of the legal notice from Ops Ex.C-10.

7.             On the other hand, as already stated, Photostat copy of job sheet dated 20.4.2018 was proved on record as Ex.OP1/1 in two pages and similarly photostat copy of the job sheet dated 22.10.2018 and 29.11.2018 each of single leaf were tendered as Ex.OP1/2 and Ex.OP1/3 respectively.  Photographs and CDs are Ex.OP/4 and Ex.OP/5 respectively, terms and conditions of warranty offered by the manufacturer are Ex.OP1/6 and reply submitted by the OP in response to the legal notice is Ex.OP1/7 and other affidavits already referred to supra.

8.             We have heard the contentions put fourth by the learned counsel for the parties and have gone through the documentary evidence with their valuable assistance.

9.             At the very outset, it is significant to note that there does not seem to be any dispute that the complainant purchased the disputed mobile set i.e. Samsung note-8 on 7.12.2017 from OP number 3 i.e. M/s. Maya Telecom, Sunam vide bill bearing number 327 of even date for a sum of Rs.66,900/-. The parties are also not at variance with each other that on the said occasion OP also issued and handed over the warranty card alongwith above said mobile set in favour of the complainant.  Whether complainant had gone through various terms and conditions as mentioned in the said warranty card or not i.e. nobody’s case but if we peruse a couple of relevant conditions mentioned in the said warranty card, we find that virtually the mobile set in question is not covered under the warranty in case the same is found to be damaged physically or in case the same is happened to be liquid lodged.  In this context, if we refer to Ex.OP1/1, which also happens to be job card dated 20.4.2018, we find that the same disputed mobile set belonging to the complainant was brought to the service centre by one Shri Gursewak Singh with its display in damaged condition.  Since the above said condition of the disputed mobile set was not covered under the warranty i.e. why the same was got replaced after complainant having paid a sum of Rs.16516.06. Some how or the other this development has not been disclosed by the complainant as there is not even a whisper for the same in body of her complaint.  Even the complainant has not bothered to disclose whether the defect as pointed out by her regarding her mobile set getting shifted into auto hand free mode of its own after the above said repair or not.  Well if we go by the assertion by the complainant, even this fact can also not be ascertained at all because as per the allegations raised by the complainant her mobile set started giving trouble “Calling problem auto hand free” in August/September, 2018, which means that this mobile set was giving proper service before August except physical damage occurred somewhere in April, 2018 which was got fixed by the complainant after paying charges for the same.  But when all this has happened in the same disputed mobile set belonging to the complainant then it was desirable on the part of the complainant to have disclose this development also.  Although the OP has not raised any such allegations that since her mobile set had suffered physical damage in April, 2018, which was got repaired on chargeable basis may be the above said development was responsible for the defect as pointed out by the complainant in her present complaint, yet the complainant would have been found to have concealed anything if she would have disclosed this fact in her present complaint.

10.           Now coming over to the other contentions, the complainant says that she took her mobile set before the service centre on 22.10.2018 whereby the job sheet was opened and with OP number 2 disclosed the defect as noticed by the complainant regarding her mobile set being shifting into hands free mode during calling time but as per the definite stand adopted by the OPs in-fact at that occasion there was no defect at all in the cell phone as pointed out by the complainant rather her mobile set was perfectly in working condition.  After the complainant was satisfied with its working she accepted the same and wrote her signatures acknowledging her having chosen to receive and collect her mobile set in good working condition and to her full satisfaction.  Since the above said mobile set was found to be in perfect condition, therefore, the service engineer even did not need to upload and install software in the same afresh as the same was not required even.  However, still not satisfied with the above said development, complainant again approached the service centre on 29.11.2018 through Shri Ashwani Kansal when the latter took the mobile set to the service centre again despite at that occasion the mobile set was doing wonderfully well, so it was observed against the defect description column that the service centre people had observed that the said mobile set is in normal working condition and only on the request of the customer, the said mobile set was allowed to be submitted. In normal circumstances, if any product is not found to be defective as disclosed by the complainant then the same is not being retained by the service centre people but the way the complainant had alleged that no sane person will ever submit her mobile set worth Rs.66,900/- without having any problem faced by him/her and the same seems true to some extent, but some clever design by the said owner cannot be ruled out. May be in this complaint also, the mobile set in question was purchased on 7.12.2017, therefore, its warranty was supposed to expire on 6.12.2018 and if we look at the chronology of various events as disclosed by the complainant, we cannot convince ourself that in fact the mobile set belonging the complainant was actually having any such problem in it and as stated by the OP this was a clever design on her part to get either the new mobile set or to get back the price thereof.  Even there is not even an iota of material brought on record  by the complainant which could support her contention that the disputed mobile set suffered from some manufacturing defect or the same has been found to be the result of some inferior workmanship. Likewise, there is no opinion of independent expert to suggest that the disputed mobile set was suffering from irreparable defect which of course can never be cured.  Even what was relied upon by the learned counsel for the OP by the Hon’ble Kerala State Commission in M.J.Abraham versus Angel Agencies and others 2000(3) CPJ 544 that when a refrigerator purchased by the complainant from the OP was found to be defective, however, the said defect continued even after mechanic had tried to repair the same but since the complainant failed to prove by any cogent evidence that the said fridge suffered from manufacturing defect, so in that eventuality the order of the District Forum dismissing the complaint was not open to question in appeal and accordingly the appeal stood dismissed. So drawing analogy from the above said observation since there is no such report of expert in the case in hand so no case to grant the relief as desired by the complainant is made out, as the services rendered by the OPs were not found to be deficient and even no unfair trade practice was found to be indulged by the OPs in any manner. That being so, the present complaint is dismissed, leaving the parties to bear their own costs.

11.           A certified copy of this order be issued to the parties free of cost as per rules. File be consigned to records.

                                Pronounced.

 

                                October 28, 2021.

 

              (Sarita Garg)(Vinod Kumar Gulati)     (S.P. Sood)

                   Member              Member              President