BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  13^th May 2014       

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

Complaint No.: 1/2014 

Complainant/s:

Smt.Rajeshwari w/o.Andanayya Vastrad, Age: 42 years, Occ: Insurance Business, No.77, Kshitij Sampige Nagar, 2^nd main, Kelgeri Road, Dharwad.580008.

(By Sri.Chamaraj Bangi, Adv.)

v/s

Respondent/s:

1. Samsung India Electronics Pvt. Ltd., B-1 Sector 81 Phase.2, Noida 201301, Dist.Gautam Budda Nagar, U.P.

(By Sri.T.N.Ramesh, Adv.)

2. Safa Enterprises, Sri Ranga Arcade, Shop No.1, P.B.Road, Opp.NTTF, Dharwad 580008.

(Exparte)

3. Prism, Exclusive Samsung Service Centre, #2&3, Shridhar Plaza, Tikare Road, Dharwad 580001.

(In person)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to refund Rs.14,900/- the cost of the mobile with 18% interest from the date of purchase till realization and to award a compensation of Rs.1 lakh and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant in brief is that, respondent.1 is the manufacturer, respondent.2 is the dealer and respondent.3 is the authoised service center of Samsung India Electronics (R1). The complainant purchased a mobile set bearing GT-S75622 KAINS along with its accessories for Rs.14,900/- on 13.01.2013 from respondent.2. The said set within a days of its purchase started giving trouble due to its manufacturing defects. Hence, the complainant approached the respondent.3. During that time the respondent.3 assured and returned the set saying that the same was rectified. The same defects have been reoccurred. Thereafter the respondent.3 resolved the same by changing mother board and other parts. Inspite of it, the set was not set right properly and the defects were reoccurring such as, heating, switch off etc.  Hence, the complainant deposited the set with respondent.3. During that time the respondent.3 assured he will bring the same to the manufacturer. Despite the letter dtd.25.07.2013 to the respondent.3, the same was not attended nor replied nor returned the same and the set is lying with R3. Though the set is covered under warranty the R2 while selling the same did not endorsed signature to the warranty card by confirming the warranty. Hence, through letter dtd.29.07.2013 the complainant requested to issue warranty card. Despite of it, none of the respondents attended the complaints nor set right the same nor endorsed the warranty. At the instance of the respondents the complainant subjected to harassment. The act of the respondents amount to deficiency in service. Hence, the complainant filed the instant complaint praying the relief as sought.

3.     In response to the notice issued by this forum the respondents made appearance. While the respondent.2 remained absent despite service of notice. Hence, the respondent.2 placed exparte. The respondent.3 appeared in person, not filed written version nor evidence affidavit. While respondent.1 appeared through an advocate and filed detailed written version taking contention that the complaint filed by the complainant is not maintainable as there is no cause of action. So also the respondent taken contention that the complainant without disclosing the actual problems in the set, filed the instant complaint making false allegations even though there is no any problems. The problems which have been set out by the complainant are concocted and are not due to the manufactural defects and have arised due to mishandling of the set. Infact there is no any manufactural defects as alleged. Whenever and whatever the time the complainant approaches the same was attended and set right the defects which are found due to mishandling of the set. The defects which have been set out viz., heating and other which have been noted in the job sheet are not the manufactural defects and are due to misutilization and mishandling of the same against to the instructions by uploading and downloading the applications & usage of the internet, due to RAM speed. The respondent went on explaining the procedure and how the set to be used by the customer. Further the respondent also taken contention that though the defects have been set right & kept ready the complainant did not taken delivery of the same instead approached this forum with false allegations without any cause of action. Further the respondent also taken contention that the respondent is the reputed company for manufacturing mobile sets, so, even though there is no manufacturing defects, as a gesture of goodwill towards the customers, the respondent without objecting even though there is no manufacturing defects consented and deposited the amount paid by the complainant in the initial stage i.e. at the time of appearance, hence there is no deficiency in service on the part of respondent and pray for dismissal of the complaint with exemplary costs.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

The complainant and respondent.1 placed sworn to evidence affidavit, relied on documents. Apart from arguments also relied on citations. Heard. Perused the records.

Finding on points is as under.

1. Accordingly   
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

 5.    On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that purchase of the mobile set in question by the complainant manufactured by R1 through R2 and R3 is the authorized service center of R1.  Though both the parties pleaded their case by assertions and denials, R1 being a manufacturer as prayed by the complainant deposited a sum of Rs.14,900/- on 16.03.2014 by way of cheque payable in the name of complainant herself before filing the written version and prayed for closure of the complaint. But the complainant reluctant to close the case, instead insisted for prosecution of the case, submitting that the complainant has put to harassment, so she is not willing to close the case without cost and compensation. Hence, the case came up for trial without closing. However, the respondent filed written version and both the parties have placed sworn to evidence affidavit and argued.

6.     Now the question to be determined is, whether the complainant is entitled for compensation and other costs as prayed, if so, for what relief the complainant is entitled.

7.     As we all known, the consumer complaint is concerned is a summary proceedings with speedier, inexpensive trial with adequate relief. As discussed supra the grievance of the complainant has been settled by the respondent even though the respondent disputes and denied with regard to the manufactural defects. So, looking into the tax invoice, it disclose that the cost of the mobile is Rs.14080-50 ps., the VAT @5% it amounts to Rs.819-50, in total cost of the mobile is Rs.14,900/-.

8.     As already discussed the main prayer of the complainant is to refund the amount and to award compensation. Looking into the Tax invoice the VAT is payable to the government as a revenue. In this regard there is no dispute. It is not the amount of either the respondent or the complainant. Even then though the said amount has been paid to the government exchequer, the respondent returned the entire amount to the complainant by way of cheque.

9.     Further perusal of the invoice, the mobile in question is purchased on 13.01.2013. Though the complainant pleaded, the problems set out within days of purchase, the service request Annexure.1 to 3 produced by the respondent disclose that for the first time the complainant approached the R3 on 21.05.2013 as per Annexure.1. As admitted by the complainant the mobile was purchased on 13.01.2013. So, complainant approached the R3 only after lapse of about 5 months. During those period she has utilized the same without any problems.

10.   Further, Annexure.1 disclose the defects have been attended and set right. For the 2^nd time the complainant approached R3 on 07.09.2013 as per Annexure.2 with a complaint of Auto Off & the same was updated. Again the complainant approached the R3 on 11.01.2014 with a complaint of handset get heat while using and the unit is with the respondent.

11.   The case of the respondent is that they have set right the said defects even then the complainant did not turn up and collected the same and is lying with them idle. Hence, they have not committed any deficiency in service as such they are not liable to make good of any claim as prayed.

12.   As contention taken by the respondent the complainant did not produced any documents or evidence to show that the said handset is suffering from manufactural defects. Despite of it, the respondent as a goodwill gesture irrespective of defects and manufactural defects at the first instance itself deposited the entire amount including the VAT paid by him.

13.   By the pleadings and also the evidence of the complainant it is evident that the complainant has not approached this forum with clean hands and she has suppressed the real facts. Because the complainant both in the complaint and evidence she has stated that the defects which she is relying starts from the date of purchase. But when look into Annexure.1 to 3 if any defects which are shot out after lapse of 5 months from the date of purchase that too they are not manufactural defects. Under those circumstances the complainant is not entitled for replacement/refund of the entire amount. However, she is entitled for set right defects if any free of cost as which are within the warranty period.

14.   Inspite of it the respondent has deposited the entire amount. Under those circumstances it is not proper to order for higher additional compensation as claimed by the complainant. The complainant for his fault he is not entitled for enrichment out of others money. Hence, he is not entitled for any other amount/compensation except refund of the value of the set. However, the respondent refunded the amount including the VAT and also as per Annexures 1 to 3 the complainant has utilized the unit for a longer period. On this point of view also the complainant is not entitled for any additional compensation. However, if cost of the proceedings is ordered it will suffice the requirement of the complainant. Since the respondent has deposited the amount, we decide and held the complainant is entitled for said amount.

15.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 accordingly.

16.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

 The complaint is partly allowed. The complainant to collect a sum of Rs.14,900/- which is in deposit in the Forum in the way of cheque after depositing all the accessories of the mobile set as described in the complaint para.4. The complainant is also entitled for a sum of Rs.500/- towards cost of the proceedings. The respondent is to deposit the same within 30 days from the date of receipt of certified copy of this order and to collect all the accessories. The office is directed to release the cheque & the cost amount only after deposit of the accessories by the complainant.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 13^th day of May 2014)

(Smt.M.Vijayalaxmi)                                  (Shri.B.H.Shreeharsha)

Member                                                  President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR