Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       Sh.I.S.Virdi, has brought the instant complaint under section 12 and 13 of the Consumer Protection Act, on the allegations that  he purchased one Samsung Galaxi J1 ACE Mobile hand set of black colour vide bill No. 20945 dated 11.7.2016 having EMI No. 356821075927490 for Rs.6200/- from Opposite Party No.2 being the dealer of Opposite Party No.1 company and Opposite Party No.3 is Authorised Service Centre and at the time of sale, Opposite Party No.2 gave one year warranty of the product from the date of purchase, in case of any kind of defect or damage to the Mobile Set in question, free of costs and only on their assurances, the complainant purchased the Mobile Set in question by spending huge amount.  Just after a week of the purchase of the Mobile Set in question, it was not working properly and when the complainant was going to visit the local service station, on the way the Mobile Set in question was fallen down suddenly from hand of the complainant and due to this, the Mobile Set in question stopped working complete. The Mobile Set in question was handed over to the service centre, but after opening the entire set and checking the same, they refused to either repair the same as they told that if suffers from some inherent manufacturing defect and is beyond repair, whereas it was damaged by the service centre. Since then, the complainant is visiting the Opposite Party time and again and requesting either to repair the Mobile Set in question or to replace the same with new one as per their assurances as the Mobile Set in question is within warranty period, but they have been putting of al the requests of the complainant to a deaf ear.    Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties  may be directed to immediately replace the Mobile Set in question  with new  one or to refund its price of Rs.6200/- alongwith interest @ 24% per annum from the date of its purchase till the date of payment.

b)      Opposite Parties  may also be directed to pay Rs.2,00,000/- as compensation for mental sufferings, harassment and humiliation suffered by the complainant.

c)       Opposite Parties  may also be directed to pay Rs.22,000/- as litigation expenses.    

Hence, this complaint.

2.       Upon notice, Opposite Party No.1 appeared through counsel and filed written reply contesting the claim of the complainant taking preliminary objections inter alia therein that Mobile Set in question has been damaged  due to falling as admitted by the complainant in his complaint. There is no inherent defect in the Mobile Set in question. Due to physical damage caused to the Mobile Set in question it is not covered under the warranty and repair is to be done on chargeable basis. The Mobile Set in question has been physically mishandled by the complainant as the display of the Mobile Set in question was found  to be damaged when Mobile Set in question was submitted before Opposite Party No.3 on 16.9.2016. the display was damaged due to falling of Mobile Set in question leading to damage. Hence the display screen of the Mobile Set in question requires replacement. The estimate of the repair of the Mobile Set in question was given to the complainant, but the complainant refused to get his Mobile Set in question repaired and the complainant intentionally did not take back his Mobile Set in question from Opposite Party No.3. Moreover, there is breach of warranty terms and conditions as the Mobile Set in question has been damaged due to falling on the road. Therefore, there is no breach of contract or deficiency in service on the part of the Opposite Party No.1. On merits, the Opposite Party No.1 took almost same and similar pleas as taken by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       None appeared on behalf of Opposite Parties No.2 and 3 despite due service, hence   Opposite Parties No.2 and 3 were  ordered to be proceeded against exparte vide order of this Forum.

4.       In his bid  to prove the case, complainant tendered  his duly sworn affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1 to Ex.C6 and closed the evidence.

5.       On the other hand, to rebut the evidence on behalf of the complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.Anindya Bose, Deputy General Manager Ex.OP1/1 alongwith copy of warranty card Ex.OP1/2 and closed the evidence on behalf of 1.

6.       We have heard the complainant as well as ld.counsel for Opposite Party No.1 and have carefully gone through the evidence on record.

7.       In his submissions, the complainant has reiterated the averments made in his complaint and contended that he purchased one Samsung Galaxi J1 ACE Mobile hand set of black colour vide bill No. 20945 dated 11.7.2016 having EMI No. 356821075927490 for Rs.6200/- from Opposite Party No.2 being the dealer of Opposite Party No.1 company and Opposite Party No.3 is Authorised Service Centre and at the time of sale, Opposite Party No.2 gave one year warranty of the product from the date of purchase, in case of any kind of defect or damage to the Mobile Set in question, free of costs and only on their assurances, the complainant purchased the Mobile Set in question by spending huge amount.  Just after a week of the purchase of the Mobile Set in question, it was not working properly and when the complainant was going to visit the local service station, on the way the Mobile Set in question was fallen down suddenly from hand of the complainant and due to this, the Mobile Set in question stopped working complete. The Mobile Set in question was handed over to the service centre, but after opening the entire set and checking the same, they refused to either repair the same as they told that if suffers from some inherent manufacturing defect and is beyond repair, whereas it was damaged by the service centre. Since then, the complainant is visiting the Opposite Party time and again and requesting either to repair the Mobile Set in question or to replace the same with new one as per their assurances as the Mobile Set in question is within warranty period, but they have been putting of al the requests of the complainant to a deaf ear. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contentions of the complainant on the ground that Mobile Set in question has been damaged  due to falling as admitted by the complainant in his complaint. There is no inherent defect in the Mobile Set in question. Due to physical damage caused to the Mobile Set in question it is not covered under the warranty and repair is to be done on chargeable basis. The Mobile Set in question has been physically mishandled by the complainant as the display of the Mobile Set in question was found  to be damaged when Mobile Set in question was submitted before Opposite Party No.3 on 16.9.2016. the display was damaged due to falling of Mobile Set in question leading to damage. Hence the display screen of the Mobile Set in question requires replacement. The estimate of the repair of the Mobile Set in question was given to the complainant, but the complainant refused to get his Mobile Set in question repaired and the complainant intentionally did not take back his Mobile Set in question from Opposite Party No.3. Moreover, there is breach of warranty terms and conditions as the Mobile Set in question has been damaged due to falling on the road. Therefore, there is no breach of contract or deficiency in service on the part of the Opposite Party No.1. But however, none appeared on behalf of Opposite Party No.2 who is seller of the said product nor appeared on behalf of Opposite Party No.3 who is authorised service centre, with whom the Mobile Set in question is still lying idle. Non appearance of the Opposite Parties No.2 and 3 before this Forum depite proper service, shows their malafide and bad intention and high handedness.  The evidence produced by the complainant has gone unrebutted against  Opposite Parties No.2 and 3  on record.

8.       It is not disputed that the Mobile Set in question has been stopped working within warranty period of one year as it was admitted purchased by the complainant from Opposite Party No.2 vide   bill No. 20945 dated 11.7.2016 (copy of bill accounts for Ex.C1) having EMI No. 356821075927490 for Rs.6200/- from Opposite Party No.2 being the dealer of Opposite Party No.1 company and Opposite Party No.3 is Authorised Service Centre. It is also not disputed that the warranty was provided by the company service centre only  as fully depicted on the bill itself which is not denied by the Opposite Parties.  It is also not disputed that the Mobile Set in question became defective within warranty period of one year i.e on 1.6.9.2016, copy of service request duly issued by Opposite Party No.3- service centre at the time of taking the Mobile Set  for its repair,  is placed on record Ex.C2. It is also not denied by Opposite Party No.1 that the Mobile Set in question became defective within warranty period or within about 2 months from the date of its purchase.  But the very contention of ld.counsel for Opposite Party No.1 is that        there is breach of warranty terms and conditions as the Mobile Set in question has been damaged due to falling on the road. The very fact that the Opposite Party No.3 i.e.Authorised Service Centre has lingered on the matter and to repair the Mobile Set in dispute  ever since 16.9.2016  shows that the complainant is suffering in the hands of Opposite Party No.3 since 16.9.2016 and in this way, the complainant was compelled to file this complaint to redress his grieve by spending huge amount on the complaint which shows deficiency in service on the part of Opposite Parties No. 1 and 3 . But however, the  claim of the complainant for the replacement of the Mobile Set in question or to refund its price is not tenable because the complainant has nowhere produced any proof or expert report that the Mobile Set in question having any manufacturing defect.  In such a situation, the   Opposite Parties No. 1 and 3  are definitely liable to repair the Mobile Set in dispute to the satisfaction of the complainant without charging any amount since the Mobile Set in dispute happen to be within warranty period, copy of warranty period accounts for Ex.OP1/2. 

9.       Consequently, the instant complaint succeeds  and the Opposite Parties No. 1 and 3 are directed to repair the Mobile Set in dispute to the satisfaction of the complainant, without charging any amount, within one month from the receipt of copy of the order, failing which the Opposite Parties No. 1 and 3  shall   refund the sale price of the Mobile Set in dispute i.e. Rs.6200/-, to the complainant alongwith interest @ 6% per annum from the date of passing of the order until full and final payment. The Opposite Parties No. 1 and 3  are also directed to pay Rs.2000/- to the complainant on account of compensation for causing mental tension and harassment besides Rs.1000/- as litigation expenses.  Opposite Parties No. 1 and 3  are held liable jointly, severally & co-extensively to comply with the order.  However, the complaint against Opposite Party No.2 stands dismissed. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 14.2.2017.