DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.364 of 04-09-2013

Decided on 17-12-2013

Ranjit Singh Sran aged about 21 years S/o Hardev Singh R/o Maur Mandi, Tehsil Talwandi Sabo, District Bathinda.

........Complainant

Versus

1.Samsung India Electronics Pvt. Ltd., B-1, Sector 81, Phase-2, Noida Distt. Gautam Budh Nagar (UP), through its Managing Director.

2.Incharge/Manager, Samsung Customer Service, City Mobiles, Sunni Gali, Mansa.

3.M/s Gagan Mobile Care & Digital Studio, Government Girls School Road, Maur Mandi (Bathinda), through its Partner/Proprietor.

4.M/s Shri Ram Tele Services, St.No.6, Nai Basti, Bathinda, through its Incharge/Proprietor.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt.Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Gurkirat Singh, counsel for the complainant.

For Opposite parties: Sh.Kuljit Pal Sharma, counsel for the opposite party Nos.1

& 4.

Opposite party Nos.2 and 3 ex-parte.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant has purchased one Samsung mobile handset, model GT-57562UWAINS, bearing IMEI No.RZ1D3305N7Y (354905056668736) for Rs.11,500/- vide bill No.3731 dated 5.6.2013, from the opposite party No.3, manufactured by the opposite party No.1 with one year guarantee. After 3 days of its purchase, the abovesaid mobile handset started hanging and consuming more battery power and the complainant has been using the same with the hope that it would be set right after its use, but the problem started aggravating with the passage of time. The complainant took the abovesaid mobile handset to the opposite party No.3 with the problem of hang, it asked him to approach the service centre of the opposite party No.1, situated at Maur Mandi. The complainant approached the service centre of the opposite party No.1 at Maur Mandi namely Ravi Enterprises on 23.7.2013, it replaced the software of the abovesaid mobile handset, but the problem remained the same. Thereafter the complainant again approached the opposite party No.2 on 29.7.2013 with the problem of hang and battery back up, it retained the abovesaid mobile handset and asked him to collect it after its repair. The complainant approached the opposite party No.2 to collect the abovesaid mobile handset on 8.8.2013, it handed over the same by presenting it OK and there would be no problem in it in future. After 3-4 days, the abovesaid mobile handset again started giving the problem of hang as whenever any of its function opened, there remained no network of the mobile Sim inserted therein. The complainant changed the Sim, but the problem remained the same. The complainant handed over the abovesaid mobile handset to the opposite party No.4 on 23.8.2013, it retained the same and has issued the service voucher dated 23.8.2013. There is a manufacturing defect in the abovesaid mobile handset as the complainant has started facing the problem of hang from 3 days of its purchase as such he is entitled to refund its price from the opposite parties. The complainant has also got issued the legal notice dated 6.8.2013 to the opposite parties, but all in vain. Hence the present complaint filed by the complainant to seek the directions to the opposite parties to refund the amount of Rs.11,500/- i.e. price of the mobile handset in question alongwith Rs.3000/- as cost and Rs.20,000/- as compensation.

2. The opposite party Nos.1 and 4 after appearing before this Forum have filed their joint written statement and pleaded that under the warranty their obligation is to set right the abovesaid mobile handset by repairing or replacing the defective parts only. The performance of the abovesaid mobile handset depends upon the handling of the product and downloading of the various mobile applications and virus threat from the internet usage. No assurance of the replacement of the abovesaid mobile handset was given by the opposite party Nos.1 and 4 under the terms of the warranty and the complainant cannot claim more than he has agreed to. The complainant alleged the problems regarding the hang and battery back up in this complaint. The problem of hang occurs only due to the downloading and installation of the non-compatible mobile applications, games etc. leading to the software corruption and overloading of the processor of the mobile handset. The battery gets exhausted earlier when games, movies and songs are played and the various other applications are used leading to the less battery back up. There is no other problem alleged by the complainant in his complaint, it shows that he is using the abovesaid mobile handset against its guidelines provided in the user manual, thus there is no manufacturing defect in it that cannot be repaired. However, as a goodwill gesture the opposite party Nos.1 and 4 are still ready to render the service to the complainant with regard to the mobile handset in question if required. The complainant has neither alleged any specific irreparable manufacturing defect or inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central Approved Laboratories in support of his allegations. The opposite party No.1 and its service centre have never denied after sale service and they are still ready to provide the service to the complainant. The opposite party Nos.1 and 4 denied the purchase of the abovesaid mobile handset or one year guaranty was given on it, rather the general warranty is given by the manufacturer subject to the submission of the valid proof of the purchase and due submission of the warranty card provided with every mobile handset. The opposite party Nos.1 and 4 also denied that after 3 days of its purchase, the abovesaid mobile handset started creating the problems of hang and consuming more battery power. The opposite party Nos.1 and 4 denied all the allegations levelled by the complainant in his complaint.

3. Registered notice has been sent to the opposite party No.2 on dated 11.10.2013 vide postal receipt No.A RP277739005IN and the opposite party No.3 on dated 24.9.2013 vide postal receipt No.A RP277635221IN but despite receiving the summons, none appeared on behalf of the opposite party Nos.2 and 3 before this Forum, hence ex-parte proceedings are taken against them.

4. The parties have led their evidence in support of their respective pleadings.

5. Arguments heard. The record alongwith written submissions submitted by the parties perused.

6. The submission of the learned counsel of the complainant is that the mobile handset in question purchased by the complainant became defective after 3 days of its purchase as it started hanging and consuming more battery power and he has been using the same with the hope that it would be set right after its use, but the problem started aggravating with the passage of time. The complainant took the abovesaid mobile handset to the opposite party No.3, it asked him to approach the service centre of the opposite party No.1. The complainant approached the service centre of the opposite party No.1 at Maur Mandi i.e. Ravi Enterprises on dated 23.7.2013, it replaced the software of the abovesaid mobile handset with new one, but the problem remained the same. Thereafter the complainant approached the opposite party No.2 on dated 29.7.2013 with the problem of hang and battery back up, it retained the abovesaid mobile handset and asked him to collect it after its repair. The complainant approached the opposite party No.2 to collect the abovesaid mobile handset on dated 8.8.2013, it handed over the same by assuring that the same is OK and there would be no problem in it in future. After 3-4 days, the abovesaid mobile handset again started giving the problem of hang as whenever any of its function opened, there remained no network of the mobile Sim inserted therein. The complainant replaced the Sim from the abovesaid mobile handset with another Sim, but the problem remained the same. The complainant handed over the abovesaid mobile handset to the opposite party No.4 on dated 23.8.2013, it retained the same and has issued the service voucher dated 23.8.2013. There is a manufacturing defect in the abovesaid mobile handset as the complainant has been facing the problem of the hang just 3 days after its purchase as such he is entitled for the refund of its price.

7. On the other hand the submission of the opposite party Nos.1 and 4 is that the performance of the abovesaid mobile handset depends upon the handling of the product and downloading of the various mobile applications and virus threat from the internet usage. No assurance of the replacement of the abovesaid mobile handset is given by the opposite party Nos.1 and 4 under the terms of the warranty. The problem of hang occurs only due to the downloading and installation of the non-compatible mobile applications, games etc. leading to the software corruption and overloading of the processor of the mobile handset. The battery gets exhausted earlier when games, movies and songs are played and the various other applications are used leading to the less battery back up. No other problem is alleged by the complainant in the mobile handset in question. There is no manufacturing defect in the abovesaid mobile handset that cannot be repaired. As a goodwill gesture the opposite party Nos.1 and 4 are still ready to render the service to the complainant with regard to the mobile handset in question if required. The complainant has neither alleged any specific irreparable manufacturing defect or inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of an expert or of any qualified person of central Approved Laboratories, in support of his allegations. The opposite party Nos.1 and 4 denied all the allegations levelled by the complainant in his complaint.

8. A perusal of record placed on file shows that the complainant has purchased the abovesaid mobile handset on dated 5.6.2013 vide Ex.C2, vide Ex.C3, the mobile handset in question has been deposited with the opposite party No.2 for its repair on dated 29.7.2013. The defect description in Ex.C3 is given as 'Hang and battery back up problem', meaning thereby the defect in the abovesaid mobile handset has occurred within 2 months of its purchase. A perusal of Ex.C4 shows that the defect description is given as 'Hang open any function, no network'. As per the version of the complainant the abovesaid mobile handset became defective after 3 days and it started hanging and consuming more battery, but no such evidence placed on file by the complainant to show that the abovesaid mobile handset became defective just within 3 days of its purchase, rather he has placed on file job sheets, Ex.C3 and Ex.C4 that are of dated 29.7.2013 and 23.8.2013 respectively. As per the version of the opposite party Nos.1 and 4 the defect regarding the hang is due to the downloading and installation of the non-compatible mobile applications, games etc. leading to the software corruption and overloading of the processor of the mobile handset. The battery gets exhausted earlier when the games, movies and songs are played and the various other applications are used leading to the less battery back up, but to prove their this version the opposite party Nos.1 and 4 have not placed on file even a single document. Moreover the job sheets issued by the opposite party No.2 on behalf of the manufacturing company also do not bear the remarks that the problem regarding the hang has occurred due to the downloading and installation of the non-compatible mobile applications, games etc. and the battery gets exhausted earlier when the games, movies and songs are played.

9. The complainant approached the opposite party No.2 on dated 29.7.2013 with the problem of hang and battery back up, it retained the abovesaid mobile handset and asked him to come after its repair. The complainant approached the opposite party No.2 to collect the abovesaid mobile handset on dated 8.8.2013, it handed over the same to him with the assurance that there would be no problem in it in future, but after 3-4 days, the abovesaid mobile handset again started giving the problem of hang. The complainant replaced the Sim from the abovesaid mobile handset with the Sim of other company but the problem has not been rectified. The complainant handed over the abovesaid mobile handset to the opposite party No.4 on dated 23.8.2013, but till date the same is lying in the possession of the opposite party No.4, it has not handed over the abovesaid mobile handset after rectifying the same. Thus keeping the mobile handset in question by the opposite party No.4 with it for such a long time shows that there is irreparable defect in it that cannot be rectified. The opposite party No.1 has placed on file Disclaimer, Ex.OP1/3. The relevant portion of Ex.OP1/3 is reproduced:-

“Disclaimer:-....Third party content and services are provided 'As is'. Samsung does not warranty content or services so provided, either expressly or impliedly, for any purpose. Samsung expressly disclaims any implied warranties, including but not limited to warranties or merchantability or fitness for a particular purpose. Samsung does not guarantee the accuracy, validity, timeliness, legality, or completeness of any content or service made available through this device and under no circumstances, including negligence, shall Samsung be liable, whether in contract or tort, for any direct, indirect, incidental, special or consequential damages, attorney fees, expenses, or any other damages arising out of, or in connection with, any information contained in, or as a result of the use of any content or service by you or any third party, even if advised of the possibility of such damages.”

The opposite party Nos.1 and 4 have placed on file Warranty Conditions, Ex.OP1/2. The Condition No.8 of Ex.OP1/2 is reproduced hereunder:-

“8)The company's obligation under this warranty shall be limited to repair or providing replacement of part/s only. The maximum claim/s if entertained by the company will be subject to the maximum retail price of the product purchased or the purchase price, whichever is lower.”

According to this Condition No.8, the opposite party Nos.1 and 4 have themselves admitted that in case the manufacturing company or its service centre have failed to repair the mobile handset in question, its price will be refunded to the complainant.

10. Thus in view of what has been discussed above we are of the considered opinion that there is deficiency in service on the part of the opposite party Nos.1 and 4 as the defect in the abovesaid mobile handset occurred soon after its purchase i.e. within 2 months of its purchase, which is evident from the job sheet, Ex.C3 and the defect re-occurred after its repair and upgradation of the software has been done vide Ex.C4, thus the problem was existing again and again in the abovesaid mobile handset as such the complainant is liable to get the refund of the price of the mobile handset in question. Moreover as per the record placed on file the abovesaid mobile handset is lying with the opposite party No.4 since 23.8.2013. During the pendency of this complaint the opposite party No.1 and 4 has not made any efforts to return the abovesaid mobile handset to the complainant after rectifying the same, meaning thereby they have failed to rectify the defect in it.

11. Therefore in view of what has been discussed above this complaint is accepted with Rs.3500/- as cost and compensation against the opposite party Nos.1 and 4 and dismissed qua the opposite party Nos.2 and 3. The opposite party Nos.1 and 4 are directed to refund the amount of Rs.11,500/- to the complainant. The mobile handset in question is already lying with the opposite party No.4 as such no direction can be given to the complainant to handover the same to the opposite party Nos.1 and 4.

12. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

13. In case of non-compliance the interest @ 9% per annum will yield on the amount of Rs.11,500/- till realization.

14. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

17-12-2013

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member