Punjab

Moga

CC/16/103

Gopal Dhir - Complainant(s)

Versus

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

In person

31 Aug 2016

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                                                                                    CC No. 103 of 2016

                                                                                                                                                   Instituted on: 25.05.2016

                                                                                                                                                  Decided on: 31.08.2016

 

Gopal Dhir s/o Sh. Naresh Dhir R/o Shop No. 43, Guru Nanak Market, Moga, Tehsil & District, Moga.

                                                                          ……… Complainant

 

Versus

1.       Samsung India Electronics Pvt. Ltd., B-I, Sector-81, Phase-2, Noida, District Gautam Buddh Nagar, (U.P.).

 

2.       Samsung Customer Satisfaction, 2^nd Floor, Tower-C, Vipul Tech. Square, Sector-43, Golf Course Road, Gurgaon-122002 (Haryana).

 

3.       Singla Communication, Ram Ganj Chowk, Akalsar Road, Moga-142001.

 

4.       M/s Pankaj Telecom, 3 No. Corner, Near Baldev Atta Chakki, Ram Ganj Road, Moga-142001.

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 11 and 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Vinod Bala, Member,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Sh. Gopal Dhir, complainant in person.

                   Sh. Vishal Jain, Advocate Cl. for opposite party nos.1 & 2.

                   Opposite party nos.3 & 4 ex-parte.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

1.                Complainant has filed the instant complaint under Section 12 and 14 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against Samsung India Electronics Pvt. Ltd., B-I, Sector-81, Phase-2, Noida, District Gautam Buddh Nagar, U.P. and others (hereinafter referred to as the opposite parties) directing them to settle the claim of complainant for replacement of his smart phone and also to pay compensation for mental tension, agony and harassment alongwith litigation expenses to the complainant and any other relief which this Forum may deem fit be also granted.

2.                Briefly stated the facts of the case are that the complainant had purchased a Samsung Mobile phone A-5 having IMEI nos.359932/06/192692/0 and 359933/06/192692/8 worth Rs.22,400/-, which he has to pay in instalments, vide bill no.712 dated 28.09.2015 from opposite party no.4 on 28.09.2015. The said phone was having one year warranty. During the warranty period on 23.05.2016, the said phone got some internal defects. Suddenly its mice stop working and its volume button also stops working and phone also got hanged for several times. The complainant reported the matter to the authorized service centre of opposite party i.e. opposite party no.3 on dated 24.05.2016, who told the complainant that the mobile phone is out of warranty due to the reason that it had a Dent on rear and the touch broken one side. The complainant did not have any issue with such dent and broken touch and made request to fix the problem of Volume Button, Mice and Hang Problem. But they refused to do any needful and told that the set is out of warranty. Opposite parties told the complainant the set could be repaired, but he has to pay Rs.3500/-. But as the set was in warranty, the complainant did not agree to pay such an amount. The complainant inquired from another mobile repair shop, then complainant came to know that the repair may cost only Rs.350/-. In this way, the opposite parties demanded excessive amount for repair. The complainant again requested the opposite parties either to replace the phone or to make the necessary repairs, but the opposite parties did not pay any heed to the request of the complainant. Due to the acts of opposite parties, the complainant has to face mental tension, agony and harassment. Hence this complaint.

3.                Upon notice, opposite party nos.1 & 2 appeared through their counsel and filed their written reply taking certain preliminary objections that the complainant is not entitled for any relief from this Forum, as the complainant has concealed the true and correct facts and has not come before this Forum with clean hands. The mobile handset in question has been badly mishandled by the complainant as the handset was found to be physically damaged, when handset was submitted on 28.05.2016 with opposite party no.3, the touch of the handset was found broken, dent on the rear of the handset and there were other problems due to mishandling of the handset. Due to physical damage handset was not covered under warranty and repair was on chargeable basis. The estimate of the repair was given to complainant but complainant refused to get his handset repaired on chargeable basis. The complainant has now filed the present complaint alleging totally false facts and concealed the true fact regarding the condition of his handset caused due to his own negligence; that the complainant has not sought the permission of this Forum under section 11 (2) (b) of Consumer Protection Act, 1986 before instituting the present complaint against the answering opposite party. Section 11 (2) (b) of Consumer Protection Act, 1986 clearly prohibits institution of any complaint before the District Forum if any or all of the opposite parties reside outside the territorial jurisdiction of District Forum unless and until permission is ought from the District Forum for the institution of complaint. But, however, the complainant has not sought any permission for the institution of instant complaint within the territorial jurisdiction of this Forum, hence the further proceedings in the instant case is bad in the eye of law. The answering opposite party has no Branch Office within the territorial jurisdiction of this Forum, hence such institution of complaint of the complainant is not tenable in the eye of law; that the present complaint is liable to be dismissed u/s 26 of the Consumer Protection Act as the present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations; that the obligation of the answering opposite party under warranty is subject to warranty terms and conditions as mentioned in warranty card supplied with the product at the time of sale. The performance of the mobile phone depends upon the physical handling of the product. In the present case, the mobile has been mishandled as the parts of the handset were found to be damaged due to physical impact when handset was submitted with OP-3 on 24.05.2016, due to physical damage handset was not covered under warranty and repair was to be done on chargeable basis only. But complainant refused to get his handset repaired from OP-3 on chargeable basis. Now, complainant intentionally with ulterior motive has filed the present complaint alleging totally false facts; that the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation costs. 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 expert and qualified person of central Approved Laboratories in support of alleged submission as required under law. "In the absence of any expert evidence the claim cannot be allowed." The complainant claims the said mobile to be suffering from defects, therefore, it is the legal duty, under the discharge of burden, upon the complainant to establish the same by technical expert report, but no such report has been adduced by the complainant before this Forum, hence in the absence of any such technical expert report the complaint of the complainant cannot be decided as per the provisions of Consumer Protection Act, 1986; that the present complaint is gross misuse of process of law. No cause of action has arisen in favour of complainant and against the answering opposite party to file the present. There is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or its service centre has never denied after sales services to the complainant. The complainant has filed the present complaint with malafide intention to extract money from the answering opposite party by dragging in unwanted litigation. The complaint of the complainant against answering opposite party is liable to be dismissed with costs. On merits, the all other allegations made in the complaint have been denied.

4.                Opposite party nos.3 & 4 duly served, but none appeared on its behalf, as such, opposite party nos.3 & 4 were proceeded against ex-parte.
5.                In order to prove the case, complainant Gopal Dhir tendered in evidence his duly sworn affidavit Ex. C-1 and copies of documents Ex.C-2 to Ex.C-4 and closed the evidence. 

6.                In rebuttal, the opposite party nos. 1 & 2 tendered in their evidence duly sworn affidavit of Sh.Anindya Bose, Deputy General Manager, Samsung India Electronics Private Limited Ex.OP1,2/1 and copy of Samsung Service Book Ex.OP1,2/2 and closed the evidence.

7.                 We have heard the learned counsel for the parties and have very carefully gone through record placed on file.

8.                The complainant argued that on 28.09.2015, he purchased a mobile phone from opposite party no.4 worth Rs.22,400/- manufactured by opposite party nos1 & 2. The opposite parties gave one year warranty on the said mobile phone on 23.05.2016. The said mobile phone got some internal defects suddenly its Mic stop working and its volume button also stop working and further mobile phone got hanged several times. On it, the complainant reported the matter to Authorized Service Station i.e. opposite party no.3 on dated 24.05.2016, who told that the mobile phone is out of warranty for the reason that it had a dent on rear and also the touch broken one side, but he had not any issue regarding the said dent and broken touch and he requested them to fix the problem of Volume Button, Mic and Hang problem, but they refused to repair the said mobile phone and told the complainant that the mobile phone is out of warranty. Opposite party no.3 told the complainant that the mobile phone of the complainant can be repaired on chargeable basis for which, they demanded Rs.3500/-. But as the mobile phone was under warranty, so the complainant did not agree to pay this amount. Moreover, he inquired from the market and came to know that the opposite parties demanded much excess amount than the market rate to repair the mobile phone on chargeable basis. He requested them to replace the mobile phone in question or to make the necessary repair in the mobile phone, but the opposite parties gave no heed to the request of the complainant. He made numbers of requests to redress his grievance, but to no effect. The mobile set of the complainant is under warranty and the opposite parties are duty bound to repair or replace the mobile set under warranty conditions. The refusal of the opposite parties to do the same amounts to deficiency in service and mal trade practice on their part. Due to the acts of the opposite parties the complainant has suffered a lot of harassment, mental agony and he prayed that the present complaint may be accepted and opposite parties may be directed to settle his claim and also for compensation.

9.                To controvert the arguments of complainant, learned counsel for opposite party no.1 and 2 argued that the complainant is not entitled for any relief from this Forum, as the complainant has concealed the true and correct facts and has not come before this Forum with clean hands. The mobile handset in question has been badly mishandled by the complainant as the handset was found to be physically damaged, when handset was submitted on 24.05.2016 with opposite party no.3, the touch of the handset was found broken, dent on the rear of the handset and there were other problems due to mishandling of the handset. Due to physical damage handset was not covered under warranty and repair was on chargeable basis. The estimate of the repair was given to complainant but complainant refused to get his handset repaired on chargeable basis. The complainant has now filed the present complaint alleging totally false facts and concealed the true fact regarding the condition of his handset caused due to his own negligence. The present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations; that the obligation of the answering opposite party under warranty is subject to warranty terms and conditions as mentioned in warranty card supplied with the product at the time of sale. The performance of the mobile phone depends upon the physical handling of the product. Now, complainant intentionally with ulterior motive has filed the present complaint alleging totally false facts; that the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation costs. 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 expert and qualified person. No cause of action has arisen in favour of complainant and against the answering opposite party to file the present. There is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or its service centre has never denied after sales services to the complainant. The complainant has filed the present complaint with malafide intention to extract money from the answering opposite party by dragging in unwanted litigation. The complaint of the complainant against answering opposite party is liable to be dismissed with costs.

10.              We have thoroughly gone through the file, evidence and arguments lead by both the parties. The case of the complainant is that he purchased a mobile hand set from opposite parties and they gave one year warranty on the phone. During the warranty period his phone stopped working properly and he approached the opposite parties service station, who told the complainant that his mobile set is out of warranty, as there is physical damage i.e. dent on the rear and touch broken one side, so it is out of warranty and they cannot repair the same under warranty and can be repaired the same on chargeable basis, but they are responsible to repair the mobile set under warranty free of costs. In reply, learned counsel for opposite parties submitted that the complainant produced the mobile hand set in question for repair then it is found that it is physically damaged and broken. All the problems reported by the complainant in mobile set was due to mishandle and due to physically damage, as such the mobile set of the complainant was out of warranty cover and can be repair only on chargeable basis for which the complainant never agree. As the mobile hand set was physically damaged due to mishandling by the complainant, so it does not cover the warranty conditions. He produced the copy of the terms and conditions of warranty, copy of which is Ex.OP1,2/2. As per condition of warranty in case of any damage to the product/misuse detected by the Authorized Service Centre personnel, the warranty conditions are not applicable and the repairs will be done subject to availability of parts and on a chargeable basis only. In the present case, it is not denied by the complainant that his mobile hand set has physically damaged, there is a dent on its rear and touch is broken, rather he admitted this fact in complaint. His only pleading is that he has no issue regarding the physically damage and only issue is non-working of volume button, mic and hang problem etc.

11.              In view of the above discussion, we are of the considered opinion that as the mobile hand set of the complainant is physically damaged and mishandled. So, the problem reported in the mobile hand set in question by the complainant also should be due to physically damage and mishandling, which is not covered under the warranty condition so he is not entitled to get the mobile hand set in question repaired or replaced under the warranty conditions. In these circumstances, we find no merit in the present complaint and the complaint in hand is hereby dismissed. However, the parties are left to bear their own costs. Copy of the order be sent to the parties, free of costs and thereafter the file be consigned to record room.

Announced in Open Forum

Dated: 31.08.2016

 

 

                        (Bupinder Kaur)                           (Vinod Bala)               (Ajit Aggarwal)

                              Member                                     Member                      President