Complaint filed on: 22.03.2015
Complaint Disposed on:28.04.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.18/2016
DATED THIS THE 28th DAY OF APRIL 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
COMPLAINANT:
Badri @ Yogesh,
R/o Police quarters,
Chikmagalur.
(By Sri/Smt. H.C.Jayaram, Advocate)
V/s
OPPONENT:
1.Samsung India Electronica Pvt. Ltd.,
B-1 Sector-81 Phase 2, Noida District,
Gowtham Buddha Nagara, U.P.
2.Sangeetha Mobiles Pvt., Ltd.,
Shop Nos.2 & 3, Ground Floor,
Kelagur Mathis Tower, I.G.Road,
Chikamagalur City-577101.
3.Sangeetha Mobiles Pvt., Ltd.,
No.1183, Main Road, 22nd ‘A’ Cross,
Banashankari II Stage, Bengalur-560070.
(OP No.1 By Sri/Smt. T.N.Ramesh, Advocate)
(OP No.2 & 3-Exparte)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos.1 to 3 alleging unfair trade practice in selling defective mobile handset. Hence, prays for direction against OP Nos.1 to 3 to replace the said defective mobile handset or in alternative to refund the amount paid towards purchase of the mobile handset along with compensation of Rs.50,000/- for unfair trade practice.
2. The brief facts of the complaint is that:
The complainant had purchased one Samsung mobile handset from 2nd Op on 14.06.2015 by paying an amount of Rs.15,745/-, for which Op no.2 issued a invoice no.OTC/CKM 2/4 in that regard, after purchase of the mobile handset complainant noticed some defects in the mobile handset. The complainant approached the Op no.2 on several occasions and requested to repair the mobile handset. The Op no.2 had received the mobile handset, after the repair complainant received the mobile handset from Op no.2, but even after repair of the mobile handset the defect was not rectified. Hence, Op no.2 sold the defective mobile handset to the complainant. Inspite of repeated requests and demands for replacement of the handset Op no.2 not made any attempt or made any arrangements to replace the defective mobile handset. Finally complainant issued legal notice dated 14.12.2015 and called upon the Op Nos.1 to 3 to replace the defective mobile handset. Even inspite of receipt of the legal notice also Op Nos.1 to 3 have not replaced the mobile handset.
Hence, the complainant filed this complaint alleging unfair trade practice against Op Nos.1 to 3 for having selling the defective mobile handset and prays for direction against Op Nos.1 to 3 to replace the defective handset along with compensation for unfair trade practice as prayed above.
3. After service of notice OP No.1 appeared through his counsel and filed version. Op no.2 & 3 placed exparte.
4. Op no.1 in his version has contended that at the out sight the complainant has not approached this Forum with clean hands. The complainant has twisted the sequences to suit his convenience with an oblique motive to secure order from this Forum in his favour. The legal notice issued by complainant has not mentioned what type of problem he noticed in the device, in a vague manner he alleges that no proper repair was provided by Op no.2 and the same problem was continued. The complainant has not made any particular defect in the mobile handset. The complainant has not produced any documentary evidence to establish that the mobile handset sold to him is having manufacturing defects. The complainant has not produced any warranty card along with his complaint with respect to the defect to the dealer, this clearly goes to show the complainant is suppressing vital information before this Forum in order to secure favorably order in his favour and nothing else.
Op no.1 further contended that as per the terms and conditions of the warranty it is the duty of the customers to approach the company authorized service center for any rectification of malfunction in the device and not to the dealer, in this particular case the complainant alleges that the dealer not repaired his device properly, which is against to the terms and conditions of the warranty. Further if the device is stopped from function due to misuse or mishandling of the device, under such circumstances the customer is liable to pay actual price for availing service as well as replacement of the particular damaged part. Whereas in the present case the complainant approached the company authorized service centre on 07.12.2015 with his dead conditioned device. After receipt of the device the authorized service centre has raised a job sheet bearing no.4205932398. On verification it is found internal parts were burnt due to wrong usage of the device by the complainant. Since the burning issue is outside the purview of the warranty the service center has sought pre-approval from the complainant to complete the service work on chargeable basis. But the complainant had not given any approval to pay the actual amount of repair charges as per the estimate raised by service center. Apart from that the customer has delivered and taken back his device as well as signed the job sheet by himself. But the complainant has suppressed these material facts before this Forum and filed false complaint alleging unfair trade practice on the part of this Op. There is a specific obligation upon the complainant to approve as well as pay certain amount to complete the repair work, but not entitled for refund of the product cost with interest as alleged in the complaint. There is no unfair trade practice on the part of this Op and also no manufacturing defect in the mobile handset. Hence, prays for dismissal of the complaint.
5. Complainant filed affidavit and marked documents as Ex.P.1 to P.4 and marked mobile handset as M.O.1. Op No.1 not filed any affidavit, but filed memo with one copy of the warranty card and photo of the mobile handset of the complainant and acknowledgment of service request at the time of filing version.
6. Heard the arguments.
7. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is unfair trade practice on the part of OPs.
- Whether complainant entitled for any relief & what Order?
8. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
9. On going through the pleadings, affidavits and documents produced by both complainant and Op no.1, there is no dispute that complainant had purchased the mobile handset from Op no.2, who is dealer of Op no.1 (manufacturer of mobile handset) on 14.06.2015 by paying an amount of Rs.15,475/-. There is also no dispute that complainant had handed over the mobile handset to the authorized service center with a complaint of not working (dead device) on 07.12.2015. The only dispute raised by complainant is that he requested the Op Nos. 1 to 3 to replace the defective handset with new one, but Op Nos. 1 to 3 not replaced the defective mobile handset. Hence, prays for direction against Op Nos.1 to 3 to replace the said defective handset or in alternative to refund an amount paid towards the mobile handset.
10. On contrary Op no.1 had taken a contention that after receipt of the mobile handset the service center has raised job sheet no. 4205932398 and on rectification they noticed the internal parts were burnt due to wrong usage of the device by the complainant and agreed to repair the said mobile handset on chargeable basis and prepared a job card which requires pre-approval of the complainant. But the complainant had not approved to repair the mobile handset on chargeable basis and demanded for replacement of the mobile handset without any valid reasons.
The Op further contended that the burn of the spare parts due to misuse and wrong usage of the device is not covered under the warranty. Hence, they have insisted the complainant to repair the mobile handset on chargeable basis and submits no unfair trade practice on their part. In this regard Op had produced a list with 3 documents i.e., warranty card which discloses that “in case of any damage to the product/misuse detected by the Authorized Service Center personnel, the warranty conditions are not applicable and repairs will be done subject to availability of parts and on a chargeable basis only”. Further had produced another document no.2 which reflects that the internal spare parts of the mobile handset were burnt and further document no.3 the acknowledgement service request, we noticed the defect is prescribed as dead, Not booting up, burns symptoms shows on pba, adaptor, data cable and also violated that the said defects comes out of the warranty. The Op no.1 also stated in his version that the complainant knowing fully that the burn defects are not covered under warranty has filed this false complaint and insisted for payment of the amount paid towards mobile handset.
11. The complainant also produced receipt for having purchase of the mobile handset marked as Ex.P.1, Office copy of the legal notice issued to Op No.2 & 3 marked as Ex.P.2 and mobile handset marked as M.O.1.
12. On going through the document No.2 produced by Op we noticed the said mobile handset of the complainant were burnt inside and alleges that the said burn was due to misuse and wrong usage of the device. Op no.1 after failing this version has not filed any affidavit or brought any service personnel in order to establish that the said burns were caused due to wrong usage or misusage of the mobile handset. We are of the opinion that the Samsung mobile handset is user’s friendly mobile handset. There are no complications in using the mobile handset. The cause given by Op that the burns caused due to misuse and wrong usage of the device is not acceptable without any substantial proofs. The authorized service station of the Op no.1 merely denied to provide free repairs in order to gain wrongfully from the complainant. The warranty produced by Op does not discloses that the burns are not covered under the warranty, it only says that in case of any damage of the product, damages to the product which misuse detected by the authorized service centre the warranty conditions are not applicable or repairs will be done subject to availability of parts and on chargeable basis only. But here the damage to the product was not explained. Hence, we are of the opinion that the mobile handset was burnt due to internal malfunction of the mobile handset. Hence, Op no.1 to 3 are liable to replace the defective mobile handset to the complainant. If they fail to replace the mobile handset the Op no.1 being the manufacturer is liable to refund the cost of the mobile handset to the complainant.
Op no1 further liable to pay a compensation of Rs.5,000/- for unfair trade practice in selling defective mobile handset to the complainant and also not repairing the mobile handset within warranty without any repair charges and also liable to pay litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- OP No.1 to 3 are directed to replace the defective mobile handset with a new one within one month, if he fails to replace, Op No.1 being a manufacturer is directed to refund an amount of Rs.15,745/- within further 15 days.
- Op No.1 further directed to pay compensation of Rs.5,000/- (Five thousand Rupees Only) for unfair trade practice and litigation expenses of Rs.1,000/- (One thousand Rupees Only) to the complainant within the above said stipulated time, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 28th day of April 2017).
(B.U.GEETHA) (RAVISHANKAR)
Member President
ANNEXURES
Documents produced on behalf of the complainant:
Ex.P.1 - Cash invoice for having purchase of mobile handset
Ex.P.2 - Office copy of the legal notice.
Ex.P.3 & 4 - Postal acknowledgment.
M.O.1 - One mobile handset.
Documents produced on behalf of the OPs:
NIL
Dated:28.04.2017 President
District Consumer Forum,
Chikmagalur.
