DATE OF DISPOSAL: 12.12.2023

PER:   SRI SATISH KUMAR PANIGRAHI, PRESIDENT

The fact of the case in brief is that the complainant has filed this Consumer complaint under section 12 of the Consumer Protection Act, 1986 alleging unfair trade practice by the Opposite Parties (in short O.Ps) and for redressal of his grievance before this Commission.

2. The complainant purchased a mobile hand set manufactured and marketed by O.P.No.1 from the O.P.No.3 model No. Samsung J730 GZKWINS, SL. No. RZ8J8254HVA(IMEI No.358674082788209 by invoice No. 866 for payment of Rs.19,990/-.  After use within a month suddenly found that the handset to have become defective, more particularly ‘the display screen of the set gradually became hazy and blurred thus became unreadable and the complainant was prevented from using the handset and thereby had to undergo immense hardship, mental strain and inconvenience and also was prevented from utilizing all important statistics and data stored in the set as all the said data became unreadable. Consequent upon such unfortunate eventuality since the mobile handset was well within the warranty period as provided by the O.P.No.1 company, as such the complainant delivered the set to O.P.No.2 the authorized service centre for appropriate repair where upon as a token of receipt of the hand set the O.P.No.2 issued. Upon receipt of the hand set, the O.P.No.2 instead of repairing and remedying the wrong in the mobile set forthwith in order to put to inconvenience and annoyance to the complainant. The O.P.No.2 in a very callous and casual manner at “defect description” column indicated it to be “display broken” and against “warranty status” column indicated as “out of warranty”. The complainant had never indicated here set has developed a defect more fully to be a case of “display broken” rather stated that the screen to have became “blurred and unreadable”. In the warranty card condition has provided as against the set at Annexure No.3 in the terms indicated “out of warranty condition & warranty void condition”, there is no specific indication that in case of a contingency is to be construed to be a case out of warranty. The physical verification of the mobile set would show no element of contingency of display broken as indicated in Annexure-2.  The approach of the O.P.No.2 is denying service to the complainant is a case of “deficiency in service: i.e. rendering post sale warranty service and as such by putting the complainant to untold hardship and as such the O.Ps are all jointly and severally liable to compensate the complainant. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P.No.2 to rectify the defect in the mobile set or alternatively to direct the O.P.No.1 & 2 to replace the mobile set with a new set and compensation of Rs.30,000/- in the interest of justice.

3. Notices were issued against the Opposite Parties. The O.P.No.1 & 2 appeared through its advocate and filed written version. The O.P.No.3 neither appeared nor filed any written version. Hence the O.P.N o.3 was declared exparte on dated 24.09.2018.

4. The O.P.No.1 & 2 filed written version through his advocate. It is stated that the alleged complaint is one governed by the limited terms of contract of warranty for which reliefs claimed beyond said terms is not maintainable. Admittedly service is offered on chargeable basis within warranty period pointing alleged defect is due to physical damage caused to mobile. In aforesaid circumstances, this is not a case of deficiency in service. The complainant in this case pleaded manufacturing defect in the mobile handset of Samsung make without support of any materials on record or report of experts. The complaint is not even based on any technical advice and further same does not fulfill the ingredients of Section 13 and 14 of the Act to claim reliefs against these O.Ps. In para-1 of complaint with regard to purchase of mobile phone of Samsung Make on 22.12.2017 for consideration being submission based on documents, complainant may be put to establish same by producing original sealed and signed invoice and warranty card. In para 2 and 3 of complaint with regard to detection of defect just after one month of use and the display screen of the set gradually became hazy and blurred and unusable leads to mental strain, hardship, inconvenience, unable to use statistic and data stored in the set is disputed and denied in absence of any materials on record.  On receipt of mobile by O.P.No.2 for repair, and issuance of customer copy of job card is admitted. The averments of the Para disclose that this is not a case of denial of rendering service on receipt of complaint. In Para 4 of complaint with regard to O.P.No.2, instead of repairing the wrong in the mobile, in order to put to inconvenience and annoyance to the complainant very callously and casual manner mentioned defect description as ‘display broken’ and against warranty status stated ‘out of warranty’ is disputed and denied. The O.P.No.2 is an authorized service centre, who is appointed by the manufacturer to provide service for Berhampur locality, as per specific instructions agreed among the consumer and manufacturer. Admittedly complaint is lodged alleging display problem and on inspection it is reported that the display of the mobile is physically damaged and such condition of display is not covered under warranty as the reason of such damages only due to misuse and/or accidental damage at user end. O.P.No.2 in such circumstances are option less to render free service in terms of warranty and as such offered service on chargeable basis, which was not accepted by the complainant. In such circumstances, the O.P.No.2 complied its part of obligation imposed upon it by issuing necessary customer copy of job card and offering paid service. The complainant never indicated display broken while claiming service from service centre and stated that the screen to have become “blurred and unreasonable” is disputed and denied. Apart from that when display is broken or physically damage, symptoms noticed is blurred screen, liquid logging, and detection of patches on screen, etc. even some time such physical damage caused internally and not visible from outer part of display. The authorized service centre explained that this is not a case of manufacturing defect and the display is broken due to misuse and same is not covered under warranty terms. Complainant refused to avail paid service and denied to avail any service. The warranty is specifically not covered under “physical damage caused by abuse accident misuse, liquid log in any part earthquake, fire, short circuit or any other kind of damages external or internal”. In aforesaid facts and circumstances O.P. is no way liable to repair the mobile set free of cost and/or replace the same. In the present case, warranty terms never assured replacement of the mobile phone and the warranty is void, in case the set is damaged due to accident and on certain other cases, specifically mentioned in the warranty card, this is not a case of silence in contract. Hence the O.P.No.1 & 2 prays to dismiss the case.

               5.  On the date of hearing of the case, we heard learned counsel for the advocate for complainant and O.P.No.1&2.  We perused the complaint petition, written version and written argument and the materials placed on it. It is revealed that, the opposite party no. 1 & 2 failed to prove that, the display of the mobile set in question is broken due to misuse. It is further apparent from the record that the claim of the opposite party no. 1 & 2 based only on statement made in written version without corroborative documents like expert opinion. And in absence of such vital document, it cannot be said that, the mobile is not having any defects for which after one month of purchase of the handset ‘the display screen of the set gradually became hazy and blurred thus became unreadable and the complainant was prevented from using the handset. We have also thoughtfully considered the submissions made before us by the learned counsel for the complainant. Hence during the warranty period the mobile was found defective.

6. On foregoing discussion it is crystal clear that the O.Ps are negligent in rendering proper service to the complainant during the warranty period. Hence, in our considered view there is deficiency in service on the part of the O.Ps. The Hon’ble National Commission laid down the guidelines in Jindlal Dealing And Industries v. Indocon Engineers Pvt. Ltd. reported in 3 (2006) CPJ 264 NC that,“that there was fault in the product when it was in warranty period so the complainant is a “consumer” under COPRA, 1986 and the opposite party failed to redress the complaints for repair within the warranty period so opposite party was ordered to pay Rs.30, 29, 477.”

           7. So far as the compensation and cost of the case is concerned, we are convinced that the complainant has repeatedly requested to O.Ps for repairing or replacement of his defective mobile set due to problem during warranty/guarantee period but the O.Ps failed to take any effective steps to short out the problem of the complainant for which the complainant has suffered physically and mentally for which he is to be compensated. Further the complainant is also entitled to get cost of litigation since he has hired the services of an advocate for filing his complaint in this Commission and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award compensation as well as litigation cost in favour of the complainant. .

          In the result, the complainant’s case is allowed on contest against the O.Ps. The O.Ps who  are jointly and severally liable as such they are directed to refund the cost of the defective mobile i.e. Rs.19,990/- together with  Rs.10,000/- as compensation to the complainant within 45 days from the date of receipt of this order, failing which all the dues shall be realized at the rate of 12% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for realization of all dues. The complainant is also directed to return the defective mobile set to the O.Ps. 

This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 12.12.2023.