Order dictated by:
Sh.Anoop Sharma, Presiding Member
- Rajiv Sharma complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant purchased one Samsung Galaxy J7 Mobile handset from opposite party No.2 vide invoice No.1944 dated 30.11.2015 for Rs.14500/- having one year warranty. The said mobile handset became non functional and the touch screen doesn’t work on 19.11.2016. Complainant made complaint to this effect to opposite party No.3, who kept the handset with it and charged Rs. 300/- and further demanded Rs. 4900/- in all Rs. 5200/- inspite of warranty of one year. The opposite party did not return the mobile handset after rectifying the defect therein and told the complainant to come later. Thereafter inspite of several personal visits and calls by the complainant, opposite parties failed to rectify the defect in the mobile handset of the complainant . Vide instant complaint, complainant has sought for the following reliefs:-
- Opposite parties be directed to set right the mobile handset to the satisfaction of the complainant or in the alternative to refund Rs.14500/- with interest from the date of purchase till realization ;
- Opposite parties be also directed to pay compensation of Rs. 50000/- alongwith adequate litigation expenses to the complainant.
Hence, this complaint.
2. Upon notice, opposite party No.1 appeared and filed written version taking certain preliminary objections therein inter alia that there is breach of warranty terms and conditions as the handset has been mishandled by the complainant leading to ‘OCTA DAMAGE’ i.e. display of the handset break. Due to breaking of display screen the handset was not covered under warranty and repair was to be done on chargeable basis only ; that the display screen of the handset required replacement and estimate of repair was given but complainant paid Rs. 300/- only and did not pay balance amount for repair of handset. Hence, handset was not repaired by opposite party No.3. The complainant was called upon to take back his handset but complainant intentionally did not take back his handset from opposite party No.3. The handset in question has been alleged to be purchased on 30.11.2015 and for the first time the handset was submitted with opposite party No.3 on 19.11.2016 after more than 11 months of purchase. On inspection of the mobile handset by opposite party No.3, the handset was found to be physically damaged as display was damaged which shows that there is no inherent defects in the handset and rather it has been mishandled by the complainant leading to damage of display of the handset. Due to physical damage caused to the handset it was not covered under warranty and repair was to be done on chargeable basis only. 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 independent expert and qualified person in support of alleged submission as required under law . There is no inherent manufacturing defect in the handset and complainant is stopped by his own act and conduct from filing the present complaint. There is no deficiency of service or breach of contract on the part of the answering opposite party. The answering opposite party or its service centre has never denied after sale service to the complainant and they are still ready to provide service to the complainant subject to warranty terms and conditions. On merits facts narrated in the complaint have specifically been denied and a prayer for dismissal of complaint was made.
3. Opposite parties No.2 & 3 did not opt to put in appearance despite service, as such they were ordered to be proceeded against ex-parte.
4. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of bill Ex.C-2, copy of job sheet Ex.C-3 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence, Smt.Preeti Mahajan,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Anindya Bose Ex.OP1/1, copy of warranty card Ex.OP1/2 and closed the evidence on behalf of the opposite party No.1.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that the complainant purchased mobile handset from opposite party No.2 for an amount of Rs. 145000/- on 30.11.2015 vide invoice No. 1944 dated 30.11.2015. The mobile handset become non functional as the touch screen does not work on 19.11.2016 . The complainant lodged complaint to this effect to opposite party No.3, who kept the handset with it and charged Rs. 300/- and further demanded Rs. 4900/- inspite of warranty. However, the opposite parties have failed to rectify the defect in the mobile handset and the handset in question is in possession of opposite party No.3. As the opposite party No.3 has failed to rectify the defect in the mobile handset, as such they did not return the same to the complainant, which amounts to deficiency in service.
8. Whereas, the case of the opposite party No.1 is that the mobile handset has been physically mishandled by the complainant as the ‘OCTA of the handset was damaged’ i.e. display of the handset was found to be damaged/broken when the handset was submitted before opposite party No.3 on 19.11.2016. In this regard job sheet was duly issued by opposite party No.3. Ld.counsel for opposite party No.1 has vehemently contended that there is no inherent defect in the handset and rather the same has been mishandled by the complainant leading to damaging of display of the handset. It has further been contended by the ld.counsel for the opposite party No.1 that opposite parties are still ready to provide service to the complainant subject to warranty terms and conditions. It is further contended that complainant has miserably failed to prove any manufacturing or technical defect in the mobile hand set in dispute . No expert report has been placed on record for the reasons best known to the complainant and in such a situation it cannot be held that mobile handset was suffering from any manufacturing problem. It is further contended that for proving the manufacturing defect, report of expert is essential. Reliance in this connection has been placed on Sukhwinder Singh Vs. Classic Automobile Shastri Nagar, Jharkhand 2012 NCJ 917(NC) wherein it has been laid down that to prove the manufacturing defect in vehicle a report of expert is essential or some other evidence showing manufacturing defect should have been adduced . Mere fact that the product was taken to the service station for one and two times does not ipso facto proves the manufacturing defect, but the complainant has filed the complaint with malafide intentions to extract money from the replying opposite parties by dragging them in this frivolous and baseless litigation. On the basis of the aforesaid contention, ld.counsel for opposite party No.1 has vehemently contended that the complaint being false and frivolous and may be dismissed against opposite party No.1.
9. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant approached opposite party No.3 for getting the mobile handset in dispute repaired approximately one year of the purchase of the mobile handset. As the mobile handset did not suffer from any inherent defect as only its touch screen does not work due to falling of some object on the display screen. Although the complainant has not been able to prove that the mobile handset in dispute was suffering from some manufacturing defect, yet the mobile handset being within warranty period, the complainant is entitled to repair of the mobile handset in dispute to the satisfaction at the end of opposite party No.3.
10. Consequently, instant complaint is disposed of and opposite party No.3 is directed to repair the mobile handset in dispute to the satisfaction of the complainant on payment basis within a period of 15 days of the receipt of copy of the order. The complainant is also awarded Rs. 2000/- as compensation besides cost of litigation are assessed at Rs. 1000/-. 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 :19.4.2017
