BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.315 of 2016

Date of Instt. 22.07.2016

Date of Decision:12.12.2017

Rajinder Singh S/o Sh. Balwinder Singh resident of M-6 Mohalla Mithu Basti, Ward No.19, Jalandhar.

..........Complainant

Versus

1. Samsung India Electronics Pvt. Ltd., B-1, Sector 81 Phase 2, Noida District Gautam Buddh Nagar, Uttar Pradesh through its Managing Director/Principal Officer/Manager.

2. Shadb Enterprises, 201-202, Upper Ground Floor, Palam, Jalandhar through its Manager/Principal Officer/Proprietor.

….… Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. MS Walia, Adv Counsel for the complainant.

Sh. Vishal Chaudhary, Adv Counsel for the OP No.1 & 2.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that he purchased one dual sim card mobile set of Samsung brand with model A5 from Shalimar Marketing, Sanjay Gandhi Market, Near BMC Chowk, Jalandhar on 06.07.2015 for Rs.20,000/-, vide invoice No.610, with set's M-IMEI No.359932060435725 and S-IMEI No.359932060435723. After some days, the mobile started showing several problems such as giving current near ear speaker on charging, connecting from dial-pad outgoing calls could be made, call connectivity (drop calls), hanging, heating and network related problems. The complainant approached the OP No.2, the authorized service centre of Samsung with the above said problems. The service centre/OP No.2 returned the mobile handset without opening and/or repairing, but have only restored the mobile handset within one hour with the assurance that the problem has been solved.

2. That the problem in the set persisted. Then for the second time, within a few days, the complainant again approached OPs regarding unresolved problem in his mobile handset. The OP No.2 after resetting the mobile handset to factory settings returned the mobile handset to the complainant with the assurance that the problem has been solved. Nothing had been done with the mobile handset as the problem in the mobile set remained unresolved. Frustrated from the condition of the above said mobile set, again the complainant approached OP No.2 with the above said mobile set, who took said mobile set and checked through their technician. After thorough inspection, they told the complainant to swap/change the sim cards, he is using from the service provider. The complainant got swapped/exchanged the sim cards from Airtel and Vodafone after paying Rs.25/- for each sim card, but this also did not resolve the problem, which persisted in the mobile set. Again, when the complainant approached OP No.2 regarding the persisted problem in the mobile set, even after changing the sim cards, the complainant was directed by OP No.2 to change the service provider, then the complainant relying on their suggestion even changed his service provider and got postpaid connection of IDEA, after paying Rs.500/- for the same. Even after spending his hard earned money for new connection, the problem in the complainant's mobile still persisted. After replacing the old sim cards with a new one and even after buying new connection the problem persisted in the mobile set. Again, when the complainant approached OP No.2, they kept the mobile set of the complainant for two weeks and did nothing to resolve the problem. They returned the mobile handset with assurance that the above said mobile set has been repaired, fault has been removed and set would work properly. On their assurance only the complainant received his mobile set. But later on, it was found that only the software of the mobile set was re-installed. The complainant suffered loss at personal and professional fronts due to absence of android mobile set for the period for which the mobile was with the OPs. The problem in the above said mobile set persisted and still remained unresolved and as such, there is a deficiency in service on the part of the OPs, which gave cause of action to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the old mobile set of the complainant with the new one of the same model and also be directed to pay an amount of Rs.550/-, spent by the complainant for purchase of new sim card and for buying a new connection and further OPs be directed to pay compensation for harassment to the complainant, to the tune of Rs.60,000/- with interest @ 24% per annum and OPs be also directed to pay litigation expenses of Rs.10,000/-.

3. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through their counsel and filed a joint written reply and contested the complaint by taking preliminary objections that the complainant has concealed the material facts from the Forum. As per record, the complainant purchased the handset on 06.07.2015 and submitted his handset to OP No.2 for the first time on 21.06.2016 after more than 11 months of purchase with problem of Hang, give current near ear speaker while charging. The handset was checked by the OP No.2 and software was updated and handset was checked in safe mode and no such defect of current from ear speaker was detected. Thus, handset was returned to complainant in 'OK' condition to his satisfaction, whereas in his complaint, the complainant is making false allegations that handset is having defect, which has not been rectified by OP No.2 and also wrongly alleged that the problems are not curable and further alleged that the answering OP has no branch office within the territorial jurisdiction of Jalandhar, therefore, this Forum has no jurisdiction to entertain the present complaint. It is further alleged that the performance of the mobile phone depends upon the physical handling of the product apart from compatibility of downloaded mobile applications and games. The handset has been mishandled by the complainant or his family members as the complainant has complained about hanging and current in the ear speaker. The said problem was duly rectified by OP No.2 by updating the software of the handset on 21.06.2016 and further alleged that the complainant has neither alleged any specific irrepairable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and in the absence of any expert evidence, the claim cannot be allowed and if there is not established that the mobile set having any manufacturing defect, then question for replacement or refund of the price does not arise. On merits, it is admitted that the complainant purchased a mobile set for Rs.20,000/-, vide invoice No.610 on 06.07.2015, but the remaining allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-4 and closed the evidence.

5. Similarly, counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.OPW1/A and then closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. After considering the respective submission of both the counsel for the parties as well as from the scrutiny of the case file, it reveals that the complainant has placed on the file, copy of invoice, issued by Shalimar marketing dated 06.07.2015 for amounting to Rs.20,000/- and copy of the same is Ex.C1 and this factum has not been denied in regard to purchase of the mobile set by the complainant.

8. Now, question remains whether there is any manufacturing defect in the mobile set, which is not curable and these factum are required to be established on the file by the complainant, bringing on the file some cogent and convincing evidence, however, if due to any defect, the mobile phone is handed over to the service centre of the manufacturing company of the said mobile set and after going through the said mobile set, if any opinion has been given by the engineer or mechanic of the service centre, then we can shift the liability to prove that there is any manufacturing defect or not, upon the said engineer/mechanic of the said service centre, but in this case, the mobile phone was admittedly purchased on 06.07.2015 and usually the warranty of the mobile phone is one year, means upto 06.07.2016, the mobile so purchased by the complainant is well within warranty and as per allegations made by the complainant in the complaint, he firstly alleged in para No.2 that after some days of the purchase of the mobile, it started giving some problem, but after some days, he never approached to the service centre of the manufacturing firm and even the complainant only approached to the service centre first time on 21.06.2016, after more than 11 months of the purchase of the said mobile set and this plea has been taken by the OPs in para No.1 of the preliminary objection, admittedly the complainant has brought on the file only one job sheet Ex.C-2 dated 21.06.2016, apart from this job sheet, the complainant could not able to establish on the file that he ever submitted the mobile set to the service centre, but just to make a self made story, the complainant repeatedly elaborated in the complaint that he went a second time and third time to the service centre for repair of the mobile set, but if virtually he visited three or four time to the service centre, then the complainant must has to bring on the file all the three or four job sheets, but non production of the other job sheets itself established that the story propounded by the complainant is not a true one rather it is concocted one, just to get replaced the mobile set after more than one year.

9. It is a requirement of the complainant to establish on the file that there is any manufacturing defect in the mobile set, if it is established, then he obviously is entitled for replacement of the mobile set, but if we go through the only and only job sheet Ex.C-2, produced on the file, where from it is very much established that the problem of the mobile set was rectified by the service centre and thereafter, the mobile set was handed over to the complainant and he admitted that the job has been done to his satisfaction and then put his signature on the job sheet Ex.C2, so, if the job has been done by the service centre to his satisfaction, then how he can say that the mobile set was not repaired or defect was not cured by the service centre. So, with these observations, we are of the opinion that the complainant could not able to prove the allegations as made in the complaint and therefore, the complaint of the complainant fails and accordingly, the same is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

12.12.2017 Member President