Order by
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased Mobile Phone i.e. Samsung S10+128FB (Prism Black), Batch No. 355332100251055, HSN/SAC 8517 from Opposite Party No.4 vide Bill/ Invoice No. 1244 dated 06.03.2019 worth Rs.69,100/- having its one year warranty. Said Mobile phone has been manufactured by Opposite Party No.1. Opposite Party No.2 is authorized service centre of Opposite Party No.1 at Moga and Opposite Party No.3 is branch office of Samsung Company at Moga. The case of the complainant is that he put the Mobile Phone in question for charging and while charging, said mobile phone became dead. The complainant immediately went to Opposite Party No. 4 who told the complainant to approach Opposite Party No.2 and then the complainant approached Opposite Party No.2. The official of Opposite Party No.2 checked the Mobile Phone in question and asked the complainant to leave the same with their service centre as it will take time to remove the fault. So, the complainant left the Mobile Phone in question with Opposite Party No.2 and in this regard, Opposite Party No.2 issued job card. After some days, Opposite Party No.2 called the complainant and told that they have checked the Mobile Phone in question and found that mother board of the Mobile Phone in question is broken and asked to pay Rs.25,000/- for the replacement of the mother board. At this, the complainant told that the entire Mobile Phone in question is under warranty and they Opposite Party No.2 told that the Mobile Phone in question had fell down so there is no warranty for broken mother board. The complainant told them that the Mobile Phone in question never fell down and moreover, in case, if the Mobile Phone in question would have fell down then there must be scratches or cracks on outer body of the Mobile Phone in question, but there is no scratch or crack on the outer body of the Mobile Phone in question. The complainant also told them that their concerned staff already checked the Mobile Phone in question after opening the same in the morning and aft that time, the mother board was not broken and how the said mother board broken lateron and at this, the officials of Opposite Party No.2 kept mum and told that they will change the mother board only of the complainant will deposit Rs.25,000/- with them. The Mobile Phone in question is still lying with Opposite Party No.2. Hence, it is crystal clear that mother board of the Mobile Phone in question has been broken due to the deficiency in service on the part of Opposite Parties. Thereafter, the complainant visited the Opposite Parties on so many times, but the Opposite Parties refused to admit the rightful claim of the complainant and hence there is deficiency in service and Unfair Trade Practice on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
- To properly repair the Mobile Phone in question and hand over the same to the complainant in working condition and after changing the defective parts or issue new similar mobile phone or to refund its price of Rs.68,100/- and also to pay a sum of Rs.22,000/- on account of compensation for causing him mental tension and harassment or any other relief which this Commission may deem fit and proper may be awarded to the complainant.
Hence, the complainant has filed the complaint for the redressal of his grievance .
2. Upon notice, Opposite Party No.1 appeared and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is not maintainable; no cause of action arose to the complainant to file the present complaint against Opposite Party No.1. As per the record of Opposite Party No.2, the alleged hand set in question has been found to be physically damaged when it was submitted with Opposite Party No.2 on 27.03.2019. As per the warranty terms and conditions Physical damage is a warranty void condition and in that eventuality repair is done on chargeable basis only and thus estimate of repair was given to complainant by Opposite Party No.2, but the complainant refused. Opposite Party No.2 duly issued the job sheet dated 27.03.2019 and clearly mentioned that handset is out of warranty, hence handset could not be repaired and therefore there is no deficiency in service on the part of the Opposite Party No.1. The handset has been physically mishandled by the complainant leading to damage of PBA board of the handset. The complainant knowingly that physical damage is a warranty void condition and repair will be done on chargeable basis by Opposite Party No.2 has filed the present complaint alleging totally false allegations. In nutshell, the mobile handset in question has been mishandled by the complainant leading to Physical damage of PBA Board and due to the physical damage the product was not covered under warranty and the repair is to be done on chargeable basis only. There is no deficiency of service or breach of contract on the part of the answering Opposite Party. The answering Opposite Party or its service centre has never denied after sales services to the complainant and they are still ready to provide service to the complainant subject to warranty terms and conditions on chargeable basis. On merits, Opposite Party No.1 took up almost same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. Opposite Parties No.2 to 4 were duly served, but did not appear and hence, Opposite Parties No.2 to 4 were proceeded against exparte vide order dated 11.12.2019 of this District Consumer Commission.
4. In order to prove his case, complainant tendered into evidence his affidavit Ex.C1, copy of aadhar card Ex.C2, copy of bill Ex.C3, copy of job card Ex.C4 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, the Opposite Party No.1 tendered into evidence the copies of documents Ex.OPs1/1 and Ex.OPs1/2, affidavit of Sh.Anup Kumar Mathur Ex.Ops1/3, another affidavit of Avin Gupta Ex.Ops1/4 and closed the evidence of Opposite Party No.1.
6. We have heard the parties and also gone through the evidence produced on record.
7. The Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party No.1 company has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No. 1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.1 which is legally not maintainable. Further contended that the complainant has purchased Mobile Phone i.e. Samsung S10+128FB (Prism Black), Batch No. 355332100251055, HSN/SAC 8517 from Opposite Party No.4 vide Bill/ Invoice No. 1244 dated 06.03.2019 worth Rs.69,100/- having its one year warranty. Said Mobile phone has been manufactured by Opposite Party No.1. Opposite Party No.2 is authorized service centre of Opposite Party No.1 at Moga and Opposite Party No.3 is branch office of Samsung Company at Moga. The case of the complainant is that he put the Mobile Phone in question for charging and while charging, said mobile phone became dead. The complainant immediately went to Opposite Party No. 4 who told the complainant to approach Opposite Party No.2 and then the complainant approached Opposite Party No.2. The official of Opposite Party No.2 checked the Mobile Phone in question and asked the complainant to leave the same with their service centre as it will take time to remove the fault. So, the complainant left the Mobile Phone in question with Opposite Party No.2 and in this regard, Opposite Party No.2 issued job card. After some days, Opposite Party No.2 called the complainant and told that they have checked the Mobile Phone in question and found that mother board of the Mobile Phone in question is broken and asked to pay Rs.25,000/- for the replacement of the mother board. At this, the complainant told that the entire Mobile Phone in question is under warranty and they Opposite Party No.2 told that the Mobile Phone in question had fell down so there is no warranty for broken mother board. The complainant told them that the Mobile Phone in question never fell down and moreover, in case, if the Mobile Phone in question would have fell down then there must be scratches or cracks on outer body of the Mobile Phone in question, but there is no scratch or crack on the outer body of the Mobile Phone in question. The complainant also told them that their concerned staff already checked the Mobile Phone in question after opening the same in the morning and aft that time, the mother board was not broken and how the said mother board broken lateron and at this, the officials of Opposite Party No.2 kept mum and told that they will change the mother board only of the complainant will deposit Rs.25,000/- with them. The Mobile Phone in question is still lying with Opposite Party No.2 and it is crystal clear that mother board of the Mobile Phone in question has been broken due to the deficiency in service on the part of Opposite Parties. Thereafter, the complainant visited the Opposite Parties on so many times, but the Opposite Parties refused to admit the rightful claim of the complainant and hence there is deficiency in service and Unfair Trade Practice on the part of the Opposite Parties.
8. On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the complainant on the ground that as per the record of Opposite Party No.2, the alleged hand set in question has been found to be physically damaged when it was submitted with Opposite Party No.2 on 27.03.2019. As per the warranty terms and conditions Physical damage is a warranty void condition and in that eventuality repair is done on chargeable basis only and thus estimate of repair was given to complainant by Opposite Party No.2, but the complainant refused. Opposite Party No.2 duly issued the job sheet dated 27.03.2019 and clearly mentioned that handset is out of warranty, hence handset could not be repaired and therefore there is no deficiency in service on the part of the Opposite Party No.1. The handset has been physically mishandled by the complainant leading to damage of PBA board of the handset. The complainant knowingly that physical damage is a warranty void condition and repair will be done on chargeable basis by Opposite Party No.2 has filed the present complaint alleging totally false allegations. In nutshell, the mobile handset in question has been mishandled by the complainant leading to Physical damage of PBA Board and due to the physical damage the product was not covered under warranty and the repair is to be done on chargeable basis only. There is no deficiency of service or breach of contract on the part of the answering Opposite Party. The answering Opposite Party or its service centre has never denied after sales services to the complainant and they are still ready to provide service to the complainant subject to warranty terms and conditions on chargeable basis.
9. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No.1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party No.1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.1. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Parties is presumed to be correct, the case of the complainant is that it is not the denial of the parties that the complainant purchased Mobile Phone i.e. Samsung S10+128FB (Prism Black), Batch No. 355332100251055, HSN/SAC 8517 from Opposite Party No.4 vide Bill/ Invoice No. 1244 dated 06.03.2019 worth Rs.69,100/- having its one year warranty. Copy of the bill is placed on record as Ex.C3 and the warranty period of one year has not been denied by the Opposite Party No.1. The complainant further contended that he put the Mobile Phone in question for charging and while charging, said mobile phone became dead. The complainant immediately went to Opposite Party No. 4 who told the complainant to approach Opposite Party No.2 and then the complainant approached Opposite Party No.2. The official of Opposite Party No.2 checked the Mobile Phone in question and asked the complainant to leave the same with their service centre as it will take time to remove the fault. So, the complainant left the Mobile Phone in question with Opposite Party No.2 and in this regard, Opposite Party No.2 issued job card. After some days, Opposite Party No.2 called the complainant and told that they have checked the Mobile Phone in question and found that mother board of the Mobile Phone in question is broken and asked to pay Rs.25,000/- for the replacement of the mother board. At this, the complainant told that the entire Mobile Phone in question is under warranty and they Opposite Party No.2 told that the Mobile Phone in question had fell down so there is no warranty for broken mother board. The complainant told them that the Mobile Phone in question never fell down and moreover, in case, if the Mobile Phone in question would have fell down then there must be scratches or cracks on outer body of the Mobile Phone in question, but there is no scratch or crack on the outer body of the Mobile Phone in question. The complainant also told them that their concerned staff already checked the Mobile Phone in question after opening the same in the morning and aft that time, the mother board was not broken and how the said mother board broken lateron and at this, the officials of Opposite Party No.2 kept mum and told that they will change the mother board only of the complainant will deposit Rs.25,000/- with them. The Mobile Phone in question is still lying with Opposite Party No.2. On the other hand, the defence of the Opposite Party No.1 is that the mobile handset in question has been mishandled by the complainant leading to Physical damage of PBA Board and due to the physical damage the product was not covered under warranty and the repair is to be done on chargeable basis only. There is no deficiency of service or breach of contract on the part of the answering Opposite Party. But bare perusal of the job card Ex.C4 placed on record by the complainant shows that at the time of handing over the mobile set in question to the service centre i.e. Opposite Party No.2, in the column of ‘Defect Description’ it is clearly and specifically mentioned as “PHONE DEAD’ by Opposite Party No.2 itself with Accessory ‘INBUILT BATTERY, Remark: PHONE DEAD’ and this job card was issued under the signature of one Sonia for Samsung Customer Service, and there is no such remarks regarding mishandling or scratches on it which clearly proves that at the time of handing over the mobile set in question to Opposite Party No.2, it was only dead. On the other hand, Opposite Party No.1 has placed on record a copy of another job card Ex.OP1/1 in which in the repair description, it was lateron written as damage handset, which clearly proves with naked eyes that said writing was written lateron by the said service centre to wriggle out from its legal liability to repair the same. This document also clearly proves unfair trade practice of employees of the service centre who lateron prepared another job card to defend its case. Moreover, the Opposite Parties has failed to place on record the original of this job card which was placed by the complainant as Ex.C3 to prove his case. Since the mobile set in question was within warranty period, when it was handed over to the service centre i.e. Opposite Party No.2 only after 21 days from its purchase and the same is lying with Opposite Party No.2 service centre of Opposite Party No.1 since 27.03.2019 and as such, the Opposite Parties are definitely liable to make good the loss of the complainant.
11. On the other hand, the ld.counsel for the complainant has argued that the mobile set became dead immediately after its purchased within warranty period i.e. within 21 days from its purchase and hence the mobile set in question is having manufacturing defect and to strengthen his version, the complainant has tendered his affidavit Ex.C1. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
In the instant case, the mobile set in question starting giving problem within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
12. Hence, keeping in view the aforesaid facts and circumstances of the case, we direct all the Opposite Parties jointly and severally to refund the price of the mobile set in question i.e. 69,100/- (Rupees sixty nine thousands one hundred only) to the complainant alongwith interest @ 8% per annum from the date of filing the instant complaint i.e. 05.04.2019 till its actual realization. The Opposite Parties are also directed to pay lump sum compensation to the complainant amounting to Rs.5,000/- (Rupees five thousands only) for causing him mental tension and harassment besides costs of litigation. The compliance of this order be made by Opposite Parties jointly or severally within 45 days from the date of receipt of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Commission. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 25.01.2022.
