Order dictated by:
Sh.Anoop Sharma, Presiding Member.
- Present complaint has been filed by Sh.Kartar Singh under the provisions of the Consumer Protection Act alleging therein that he purchased one Mobile Set make Samsung J1 ACE J110 IMEI 353415076855545 for valuable consideration of Rs.5850/- vide bill No. 1211 dated 27.1.2016 from Opposite Party No.4. While purchasing the Mobile Set in question, it was assured to the complainant vide warranty card that the warranty period of Mobile Set in question is for one year from the date of its purchase i.e. uptil 26.1.2017. It was submitted that after five months of the purchase of Mobile Set in question, its display became totally flawed/ stopped working due to manufacturing defect in the Mobile Set in question. The complainant immediately approached the Opposite Party No.4 on 28.6.2016 and deposited the Mobile Set in question with Opposite Party No.4 and Opposite Party No.4 assured that the defect in the Mobile Set in question will be rectified from Opposite Party No.3 or it will be replaced with new one from Opposite Parties No.1 and 2. After keeping the Mobile Set in question about 20 days, the Opposite Party No.4 showed his inability to get the defect in the Mobile Set in question cured or to replace the Mobile Set in question with new one. Since the Mobile Set in question is in warranty period, as such Opposite Parties are legally bound to get the defect cured or to replace the same with new one of same make and model, but the act of Opposite Parties of not listening the genuine and legitimate request of the complainant is quite illegal, unwarranted and unsustainable. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties be directed to replace the Mobile Set in question with new one of same make and model or to refund the amount of Rs.5850/-.
b) Opposite Parties be also directed to pay Rs.50,000/- towards compensation for causing mental harassment, agony, etc. to the complainant.
c) To direct the Opposite Parties to pay costs of the litigation.
d) Any other relief to which the complainant is found entitled may also be granted in his favour.
Hence, this complaint.
2. Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the answering Opposite Parties have unnecessarily been impleaded as party to the present complaint. The Mobile Set in question has never been submitted for repair with Opposite Party No.3 till date and as per the facts pleaded in the complaint Mobile Set in question has been submitted with Opposite Party No.4 who is not the authorised to carry out any repair or service of the Mobile Set in question. Hence no cause of action arose to the complainant against the answering Opposite Parties. Moreover, the obligation of the answering Opposite Parties under warranty is to set right the Mobile Set in question by repairing or replacing the defective parts only subject to warranty terms and conditions as mentioned in the warranty card. The performance of the Mobile Set depends upon the physical handling of the product apart from installation and downloading of various mobile applications, games and other software. In the present case, the Mobile Set in question has never been submitted for repair with Opposite Party No.3 till date which shows that Mobile Set in question is perfectly working and there is no such problem as alleged in the complaint. The liability of the answering Opposite Parties is subject to terms and conditions of the warranty as mentioned in the warranty card supplied with the product at the time of sale. 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 i.e. authenticated report of expert and qualified person of approved laboratory as required under the law. So, in the absence of any expert evidence, the claim can not be allowed. Moreover, the replacement or refund is only permissible where the defect developed during the period of warranty is of such a nature that it can not be cured or repaired. Hence, there is no deficiency of service or breach of contract on the part of the answering Opposite Parties. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. On the other hand, none appeared on behalf of Opposite Parties No.3 and 4 despite due service, hence Opposite Parties No.3 and 4 were proceeded against exparte vide order of this Forum.
4. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C4 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, the Opposite Parties No.1 and 2 tendered into evidence the affidavit of Sh.Anindya Bose Ex.OP1,2/1 and closed the evidence on behalf of the Opposite Party.
6. We have heard the complainant and ld.counsel for Opposite Parties No.1 and 2 and have carefully gone through the evidence on record.
7. The complainant Kartar Singh has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and argued that he had purchased one Mobile Set make Samsung J1 ACE J110 IMEI 353415076855545 for valuable consideration of Rs.5850/- vide bill No. 1211 dated 27.1.2016 from Opposite Party No.4, copy of bill accounts for Ex.C2. It was further submitted that while purchasing the Mobile Set in question, it was assured to the complainant vide warranty card that the warranty period of Mobile Set in question is for one year from the date of its purchase i.e. uptil 26.1.2017. It was submitted that after five months of the purchase of Mobile Set in question, its display became totally flawed/ stopped working due to manufacturing defect in the Mobile Set in question. The complainant immediately approached the Opposite Party No.4 on 28.6.2016 and deposited the Mobile Set in question with Opposite Party No.4 and Opposite Party No.4 assured that the defect in the Mobile Set in question will be rectified from Opposite Party No.3 or it will be replaced with new one from Opposite Parties No.1 and 2. After keeping the Mobile Set in question about 20 days, the Opposite Party No.4 showed his inability to get the defect in the Mobile Set in question cured or to replace the Mobile Set in question with new one. Since the Mobile Set in question is in warranty period, as such Opposite Parties are legally bound to get the defect cured or to replace the same with new one of same make and model, but the act of Opposite Parties of not listening the genuine and legitimate request of the complainant is quite illegal, unwarranted and unsustainable.
8. On the other hand, ld.counsel for Opposite Parties No.1 and 2 has specifically repelled the aforesaid contentions of the complainant on the ground that the Opposite Parties No.1 and 2 have unnecessarily been impleaded as party to the present complaint. The Mobile Set in question has never been submitted for repair with Opposite Party No.3 till date and as per the facts pleaded in the complaint Mobile Set in question has been submitted with Opposite Party No.4 who is not the authorised to carry out any repair or service of the Mobile Set in question. Hence no cause of action arose to the complainant against the answering Opposite Parties. Moreover, the obligation of the answering Opposite Parties under warranty is to set right the Mobile Set in question by repairing or replacing the defective parts only subject to warranty terms and conditions as mentioned in the warranty card. The performance of the Mobile Set depends upon the physical handling of the product apart from installation and downloading of various mobile applications, games and other software. In the present case, the Mobile Set in question has never been submitted for repair with Opposite Party No.3 till date which shows that Mobile Set in question is perfectly working and there is no such problem as alleged in the complaint. The liability of the answering Opposite Parties is subject to terms and conditions of the warranty as mentioned in the warranty card supplied with the product at the time of sale. 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 i.e. authenticated report of expert and qualified person of approved laboratory as required under the law. So, in the absence of any expert evidence, the claim can not be allowed. Moreover, the replacement or refund is only permissible where the defect developed during the period of warranty is of such a nature that it can not be cured or repaired. Hence, there is no deficiency of service or breach of contract on the part of the answering Opposite Parties.
9. Admittedly, the complainant had purchased one Mobile Set make Samsung J1 ACE J110 IMEI 353415076855545 for valuable consideration of Rs.5850/- vide bill No. 1211 dated 27.1.2016 from Opposite Party No.4, copy of bill accounts for Ex.C2. It was not the denial of the Opposite Parties No.1 and 2 that the Mobile Set in question having one year warranty from the date of its purchase i.e. uptil 26.1.2017. But the only contention of the ld.counsel for the Opposite Parties No.1 and 2Opposite Parties No.1 and 2 is that the complainant has never deposited the Mobile Set in question, if there was any defect, with Opposite Party No.3 i.e. authorized service centre, but as per the averments of the complainant, he submitted the Mobile Set in question with Opposite Party No.4 who is not the authorized agency to carry out any repair or service of the Mobile Set in question. Moreover, 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 i.e. authenticated report of expert and qualified person of approved laboratory as required under the law. So, in the absence of any expert evidence, the claim can not be allowed. Moreover, the replacement or refund is only permissible where the defect developed during the period of warranty is of such a nature that it can not be cured or repaired. So, it can not be said that the Mobile Set in question have any manufacturing defect in the absence of any expert report. So, in such a situation, we direct the complainant to deposit the Mobile Set in question with Opposite Party No.3-authorised service centre of the company, within 7 days from the date of receipt of copy of this order and thereafter, Opposite Party No.3 –service centre shall remove the defects, if any, in the Mobile Set in question to the satisfaction of the complainant, without charging any amount, within a further period of 30 days. All the Opposite Parties are jointly and severally and co-extensively directed to pay Rs.1500/- to the complainant on account of compensation. 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: 18.01.2017.
