ORDER BY HON’BLE MEMBER- MRS. M. SWAIN:
JUDGMENT
Complainant has filed this consumer complaint U/s.35 of C.P. Act, 2019 seeking following reliefs;
“Direct the opposite parties to Pay Rs.36,000/- towards mobile handset or replace the said mobile hand set with a new one and pay Rs.20,000/- towards litigation charges, Rs.3,00,000/- towards compensation for mental agony an financial loss”.
The brief fact of the case is that, the complainant is a permanent inhabitant of Vill./P.O. Taradapada, Via. Chatra, Dist. Jagatsinghpur which cames under the jurisdiction of this Commission. Being a reputed businessman of Jagatsinghpur, complainant purchased a Samsung mobile S20 FE handset brand on 25.02.2021 from Allied Corner who is opposite party No.2 situated at 258, Bapuji Nagar, Bhubaneswar, Dist. Khurda. The set has attractive features and internet facilities vide model name SM-G 780FZGNINS Sl. No.RZ8R20 ADJKF vide IMEI:- 358818/74/642789/1. The complainant purchased the mobile phone from Allied Corner i.e. opposite party No.2 of Rs.36,000/- and obtain invoice No.AC2764/2017-18 dtd.26.02.2021.
On 26.02.2021 when the complainant started active the said Samsung mobile S20 FE handset after some hours the complainant facing so heat on the said mobile phone at the time of talk and use of application in internet and the complainant immediately went to the local authorized customer care centre i.e. opposite party No.3, but the authorized customer care centre advised the complainant that the set is within warranty period so he should contact the Samsung Company i.e. opposite party No.1. The complainant complain before opposite party No.1 by e-mail regarding the heat issue of the hand set. The counselor of Samsung Company advised to followed some basic steps for solving the heat issue, as per instruction of the counselor the complainant followed the entire steps but the problems was not short out. Again on 12.4.2021 the complainant complain to opposite party No.1 by e-mail and reply of opposite party No.1 is as follows: “As you are still facing issue with your device after performing the troubles shooting steps, we are requested you kindly visit the nearest service centre to resolve your issue at the earliest”. On 12.4.2021 complainant visited the authorized service centre i.e. opposite party No.3 with acknowledgement of service request bill No.4323122884, but the issue of heating problem is not solved. Again on 15.4.2021 complainant complain to opposite party No.1 that the hearing problem was not solve even if after following the process of the customer care centre through e-mail and the counselor of opposite party No.1 advised to visit the nearest service centre to resolve the problem so on same day i.e. on 15.4.2021 the complainant handed over the mobile set to opposite party No.3 with acknowledgement of service request bill No.4323353371, but the heating problem of mobile set during talk and using of mobile application was not solve. Again on 05.7.2021 as per advice of opposite party No.1 the complainant visited to the service centre i.e. opposite party No.3 with acknowledgement of service request bill No.43274938688 but the issue of heating problem of mobile set is not solve, hence this complaint.
Complainant submitted following documents in support of his case;
- Invoice No.2764 dtd.25.02.2021 by Allied Corner.
- Gmail copy and reply dtd.03.4.2021, 12.4.2021 & 15.4.2021.
- Acknowledgement of service request dtd.12.4.2021, 16.4.2021 & 05.7.2021
Notice was issued on 21.8.2021, opposite parties No.2 & 3 neither appeared before this Commission nor submit written version, so opposite parties No.2 & 3 set ex-parte vide order No.9 dt.04.7.2022.
Opposite party No.1 submitted the written statement and stated that the present complainant no documents, report of experts submitted, establishing alleged manufacturing defect in the mobile phone and Committed of deficiency in service or adoption of unfair trade practice. The complainant may produce original sealed and signed invoice and warranty card of the mobile. The opposite party No.1 is stated that all the opposite parties are separate and independent entities and running their business in their own name and style and stated that opposite party No.1 is a registered company and it has not any branch office at Jagatsinghpur, so the complainant wrongly approached this Hon’ble Commission. Opposite party admitted that the complainant complain is lodged and it has been replied with co-ordination of opposite party No.3. Opposite party stated that on 14.4.2021 for the first time alleged mobile submitted before authorized service centre alleged defect of excess heating on observation the mobile found functioning perfectly. Similarly on 16.4.2021 and 05.7.2021 the mobile set was submitted in the authorized service centre of opposite party No.1 and it works properly as remark of opposite party No.3 and returned to the complainant. It is admitted by the opposite party that all the complaint is registered in authorized service centre and service is rendered in free of cost as the mobile is in warranty period. Opposite party submitted AIR 2006 Supreme Court 1586 (Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & others “Sale of defective car- Complainant purchased alleging that there was manufacturing defect in car purchased by him and requested for its replacement- warranty conditions clearly refers to replacement of defective part and not the car- Not a case of silence of a contract of sale to warranty”. And also filed 2000, NCJ (SC) 58- has clearly held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period. The consumer can only claim repairing of the product if permissible under the terms of service contract or warranty.”
On the basis of pleadings and documents available on record the following issues are framed;
Issue No.1:- Whether the complainant is a consumer or not?
It seen from the document on record that the complainant has purchased Samsung Mobile S20 FE hand set of Rs.36,000/-for own use on payment of consideration. So the complainant is a consumer as per Section 2(7) of Consumer Protection Act, 2019. So issue No.1 is answered in favour of the complainant.
Issue No.2:- Whether this Commission has got jurisdiction to try this case and whether the case has been filed within time limit?
The complainant is a permanent resident of within this Commission as per Section 34 of Consumer Protection Act, 2019 the complainant resides or personally works for gain. The value of claim and dispute being Rs.36,000/- within the pecuniary jurisdiction of this Commission. The complaint is also within the time limit i.e. 2 years. So this Commission has got jurisdiction to try this case.
Issue No.3:- Is there any deficiency in service on the part of the opposite parties?
It is undisputed that Samsung Mobile set S20 FE was purchased from opposite party No.2 for consideration of Rs.36,000/- on 25.02.2021. The Consumer Court adjudication are summary in nature, so as prays by the opposite party the adjudication cannot be done in a piecemeal manner the contention raised by the opposite party as preliminary objections shall be answered when the dispute is finally answered.
It is admitted case by both the parties that the complainant has bound to the opposite parties several times with complain of mobile hand set overheating.
These opposite parties failed to rectify the problem of heating for which the complainant force to file this instance complaint in all cases of mobile hand set bursting mobile hand set heating is a primary cause of such bursting, so an user cannot have his peace of mind if his hand set unusually heat up such bursting may cause danger to his life and despite repeated visit by the complainant to the opposite parties, the defect persisted in the hand set. Though these opposite parties received the mobile and register complain and returned the mobile to the complainant after upgrading the software, it cannot be set that opposite parties have rendered proper service. The repeated approach of the complainant to the service centre of the opposite parties very clearly indicate that the hand set has inherent manufacturing defect and the opposite parties has wasted much time in the garb of repairing and examination of the mobile hand set. This is a petty case which is pending since last two years sending the phone further for expert opinion may cause further delay and harassment to the complainant. This Commission holds from the materials available on record that the phone has manufacturing inherent defect.Because the complainant has approached these opposite parties with the problem of overheating of his mobile if that defect is not rectified, then it can be vouched safe to conclude that the opposite parties are deficient in providing service.
In terms of the warranty, as these opposite parties failed to remove the defect from the mobile hand set, they are bound to replace the defective mobile with a new one.
Accordingly the opposite parties are directed to replace the mobile hand set with a new one of same make and model or higher model or in alternative refund Rs.36,000/- to the complainant within 15 days from the date of receipt of this order. With the aforesaid observation and direction the consumer complaint is disposed of.
