Order dictated by:

Sh.Anoop Sharma,Presiding Member

1.       Aman Khokhar has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations  that complainant purchased  one Samsung J7 Mobile from opposite party No.3 vide invoice No. 901 dated 13.4.2016 for Rs. 14500/- with one year and receipt to that fact is attached. The said mobile hand set become non function  as its touch screen doesn’t on 24.9.2016. The complainant made complaint to the said effect  to opposite party No.2, who kept the handset with it but did not return the same after rectifying the same  and only told that the requisite parts were not available with them . Thereafter inspite of several visits, opposite parties failed to rectify the said defect in the mobile handset of the complainant . Vide instant complaint, complainant has sought the following reliefs:-

(a)     Opposite parties be directed to set right the mobile handset of t5he complainant to his satisfaction or in the alternative to refund Rs. 14500/- alongwith interest ;

(b)     Compensation to the tune of Rs. 20000/- alongwith adequate litigation expenses be also awarded.

Hence, this complaint.

2.       Upon notice, opposite parties No.1,2 & 3 duly served. However, none put in appearance on behalf of opposite party No. 2 as such it was ordered to be proceeded against ex-parte. However, opposite parties No. 1 & 3 appeared and  filed written reply .

3.       Opposite party No.1 in its written version has taken certain preliminary objections stating therein inter alia that  handset has been found tampered as the touch screen part is not made by Samsung. Due to duplicate display screen the handset was not covered under warranty and complainant refused to pay for repair charges. Clause 5 of the job sheet placed on record reads as follows “The product has been accepted for service subject to internal verification. If product is found to be tampered, misused, components removed, cracked or liquid logged the same will not be considered under warranty. In such case customer will have to pay for the repair or the product will be returned without repairs” ; that the mobile handset in question has been tampered/got opened/repaired by the complainant from unauthorized source as the ‘touch screen of handset was not made by Samsung and it was duplicate’. The handset was submitted  to opposite party No. 2 on 24.9.2016 with problem of ‘Touch not work’ on internal inspection of handset by opposite party No.2, the touch screen of the handset was found duplicate means complainant has got his handset repaired earlier from some unauthorized source which is breach of warranty terms and conditions. Opposite party No.2 disclosed this fact to the complainant and gave estimate of repair, but complainant refused to pay for repair charges. As such the handset was not repaired by opposite party No.2 and complainant was called  upon to take his handset  but he did not take his handset from opposite party No.2. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product  nor filed any documentary evidence. While denying and controverting other allegation, dismissal of complaint was prayed.

4.       Whereas opposite party No.3 in its written version has admitted that complainant purchased a mobile Samsung J7 for Rs. 14500/- vide bill dated 13.4.2016 from opposite party No.3. But, however, there is no liability of opposite party No.3 being the dealer only. The complainant has never intimated opposite party No.3 with regard to the problem occurring in the mobile handset nor there is any allegations against the replying opposite party.

5.       In his bid to prove the case, Sh. Inderjit Lakhra,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1,copy of bill dated 13.4.2016 Ex.C-2,copy of service request dated 24.9.2016 Ex.C-3 and closed the evidence on behalf of complainant.

6.       To rebut the aforesaid evidence Mrs.Preeti Mahajan,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Anindya Bose, Deputy General Manager Ex.OP1/1, copy of warranty card Ex.OP1/2 and closed the evidence on behalf of opposite party No.1.

7.       But, however, opposite party No.3 did not appear to adduce any evidence,  as such it was ordered to be proceeded against ex-parte.

8.       We have heard the ld.counsel for both the parties and have carefully gone through the record on the file.

9.       There is no dispute that the complainant purchased mobile hand set in dispute on 13.4.2016 from opposite party   No.3  against invoice /bill No. 901 copy whereof is Ex.C-2 on record. It is in evidence that the mobile hand set  became non function as its touch screen does not work. In this regard complainant has placed on record job sheet  dated 24.9.2016 Ex.C-3 on record. The mobile hand set was within its warranty period at that time. The complainant approached opposite party No.2 and requested it to rectify the said defect and handed over the mobile hand set in dispute for repairs  on 24.9.2016. It is further in evidence that  mobile hand set has been in the custody of opposite party No.2 and the same has not been repaired so far. The complainant paid several visits to opposite party No.2 to enquire about the latest status of the mobile hand set in dispute. But , however, the opposite party No. 2 has failed to handover the mobile hand set in dispute  to the complainant, after repairs so far .

10.     Whereas, the case of the opposite party is that the handset has been found tampered as the touch  screen part of the handset was found duplicate means complainant has got his handset repaired earlier from some unauthorized source, as such the handset was not covered under warranty and complainant refused to pay for repair charges.  But the opposite party has failed to produce any evidence that the complainant has got repaired the mobile handset from some unauthorized source as the opposite party did not produce any evidence to prove the said fact nor filed any affidavit of the person , who allegedly changed the touch screen of the mobile handset . So it was proved on record that the handset is suffering from defect in touch screen. As the mobile handset of the complainant is within warranty period , as such the opposite parties are liable to make the mobile handset in functional order.  But , however, the complainant has not adduced on record any expert opinion to prove that the mobile hand set had some manufacturing defects or that it was beyond the scope of repairs In such a situation, the complainant cannot be said to be entitled to either refund of the price of mobile hand set in dispute or replacement of the same with new one of the same quality and make at this stage . It is proved on record that opposite parties  are deficient in service and the complainant is entitled for the free repairs of the mobile hand set in dispute to his satisfaction and opposite parties are directed to repair the mobile hand set in dispute within 15 days from the receipt of copy of this order & handover the same to the complainant  .The complaint stands disposed off accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 8.3.2017

/R/