Punjab

Amritsar

CC/16/197

Vicky - Complainant(s)

Versus

Samsung India Electronics Ltd. - Opp.Party(s)

06 Oct 2016

ORDER

 

Order dictated by:

Sh.S.S.Panesar,President.

1. Mr. Vicky complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that  complainant purchased one mobile set having IMEI No. 352607/06/401053/7 of Samsung company i.e. opposite party No.1 from its authorized dealer  i.e. opposite party No.2 for a sum of Rs. 13000/- on 10.6.2015 vide invoice No. 404. After one month of the purchase of the said mobile set, the mobile handset was used to be hanged and restarted automatically and also started giving calling problem. On account of this problem, the complainant handed over the said mobile set to opposite party No.3 on 3-4 occasions. All the times the same was returned back to the complainant with the assurance that the said defects have been removed permanently  and now it will not give any trouble. But all the said assurances given by opposite party No.3 proved to be false and the said problems remain continued  in the said mobile set. As such finally on 4.2.2016 the abovesaid mobile set was given to opposite party No.3 on account of hanging, switch off and calling problem by the complainant with the request to remove the said defects. Opposite party No.3 after thorough investigation stated that there is some inherent manufacturing defect in the motherboard of the said mobile set and the opposite party No.3 issued job sheet dated 4.2.2016 and told the complainant to come after three days to receive the said mobile set. Thereafter complainant went to the opposite party No.3 after three days, but the set was not returned back to the complainant  and complainant was told to come again after 3 days . When again the complainant approached opposite party No.3, they flatly refused to return the abovesaid mobile set to the complainant and openly declared that the said mobile set is having some inherent manufacturing defect. Thereafter when the complainant requested to return back the said mobile set ,  opposite party No.3 putting the matter off under one pretext or the other. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite parties be directed to refund the entire sale price of Rs. 13000/- alongwith interest @ 18% p.a. from the date of purchase till payment.
2. Compensation to the tune of Rs. 25000/- alongwith litigation expenses may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, opposite party No.1 appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter-alia that the complainant has purchased the mobile handset on 10.6.2015 and for the first time it was submitted with opposite party No.3  on 4.2.2016 with problem of Hang, auto switch off, which occurred due to manhandling of the handset. Opposite party No.3 duly rectified the problem and the handset is perfectly working. But the complainant did not take back his mobile handset from opposite party No.3 inspite of repeated calls and reminders from opposite party No.3 that there is no inherent defect in the handset as alleged by the complainant ; that the present complaint is liable to be dismissed under section 26 of the Consumer Protection Act as the same is gross abuse of the process of law. No cause of action has arisen to the complainant  to file the present complaint. There is no deficiency or service or breach of contract on the part of the answering opposite party; that the complainant has neither any specific irreparable manufacturing defect   and inferior quality of the specific part of the product nor filed any documentary evidence i.e. report of expert  in support of alleged submission as required under law. But no such report has been adduced by the complainant till date before this Forum ; that the complainant has filed the present complaint with malafide intention to take benefit of his own wrongs and to extract money from the opposite party by dragging  in unwanted litigation.  The complaint of the complainant against opposite party is liable to be dismissed with cost. On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.

3.       Whereas 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.Amit Bhatia,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, original bill Ex.C-2, service request Ex.C-3, legal notice Ex.C-4, postal receipts Ex.C-5 to Ex.C-7  and closed the evidence on behalf of complainant.

5.       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 and closed the evidence on behalf of opposite party No.1.

6.       We have heard the complainant and ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of opposite party No.1.

7.       On the basis of the evidence, ld.counsel for opposite party No.1 has vehemently contended that it is the case of the complainant that he purchased mobile handset from opposite party No.2 for an amount of Rs. 13000/- on 10.6.2015 vide invoice No. 404 dated 10.6.2015. After one month of the purchase of the mobile handset, the same  used to hang and restarted automatically but it used to give calling problem as well. It is the case of the complainant that on 3-4 occasions, he handed over the mobile set to opposite party No.3 but the same was used to be returned back with the assurance that the defects have been removed and the handset will not cause any trouble in future. It is the further  case of the complainant that finally on 4.2.2016 the set was again given to opposite party No.3 on account of hanging, switch off and calling problem with a request to remove the defects. After thorough investigation, opposite party No.3 stated that there were some inherent manufacturing defect in the motherboard of the mobile set and he was issued job sheet dated 4.2.2016 but the complainant was told to come back after 3-4 days to receive the mobile hand set. But it is the case of the opposite party that the complainant is not entitled for any  relief as he concealed the material and true facts from this Forum. The complainant has  purchased the mobile set on 10.6.2015 and for the first time it was submitted with opposite party No.3 i.e. authorized service centre on 4.2.2016 with the problem of hanging, auto switch off   which occurred due to mishandling . Opposite party No.3 duly rectified the problem and handset is perfectly working but the complainant did not take back his handset from opposite party No.3 despite repeated calls. As such it has been vehemently contended that instant complaint is liable to be dismissed u/s 26 of the Consumer Protection Act for gross abuse of the process of law. 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.

8.       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 after 9 months of the purchase of the mobile handset. Thereafter  on 3-4 occasions, the complainant again approached the opposite party for getting the mobile hand set in dispute repaired and lastly the handset was handed over to opposite party No.3 for repairs on 4.2.2016 and since then the same was lying there awaiting the repair. Copy of the job sheet account for Ex.C-3 on record . 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. Opposite party No.3 has been deficient in not providing free service pertaining to repairs of the mobile handset in dispute.

9.       Consequently, instant complaint succeeds and  opposite party No.3 is directed to repair the mobile handset in dispute to the satisfaction of the complainant without charging any amount within a period of one month 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/-. If compliance of the order is not made within the stipulated period, awarded amount shall carry interest @ 6% p.a from the date of filing of the complaint until full and final recovery. 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 :6.10.2016

/R/