Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 474.
Instituted on : 16.10.2015.
Decided on : 08.09.2016.
Loveleen N.Gupta wife of Sh. Pawan Gupta r/o H.No.1 Opp. ESI Dispensary Old Housing Board Colony Road, Rohtak.
………..Complainant.
Vs.
- Samsung India Electronic Pvt. Ltd. SCO 35 Sector 31 Gurgaon through its M.D.
- Malik Enterprises 206/28 Subhash Nagar Opp. Liberty Cinema Rohtak through its Prop.
- Service Centre of Samsung at HUDA Complex Rohtak through its Incharge.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.Madhur Arora, Advocate for the complainant.
Sh.Kunal Juneja, Advocate for opposite party no.1 & 3.
Opposite party No.2 already exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Mobile phone of Samsung Model Note 3 Neo IMEI No.351665/06/76194018 vide bill no.1001 dated 22.10.2014 for Rs.22500/- from the opposite party no.2 who is authorized agent of opposite party no.1, the manufacturer of said mobile. There was one year guarantee on the said set. It is averred that soon after purchase, it was found that there was some manufacturing defect in the said mobile and there were problems in touch, heating problem, hanging and earphone etc. It is averred that complainant contacted the opposite party no.2 i.e. service centre in May 2015 and opposite party no.3 after some repair handed over the set but the defect was not removed. It is averred that complainant again contacted the opposite party no.3 on 3.10.2015 and 07.10.2015 but the said set could not be repaired and it was told that the same is having manufacturing defect which is beyond repair. It is averred that the opposite parties have supplied a defective set to the complainant. It is averred that despite repeated requests of the complainant, his mobile phone could not be repaired by the opposite parties. As such it is prayed that opposite parties may kindly be directed to refund the cost of mobile set alongwith interest, compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties. Opposite party n.o.1 & 3 appeared and filed their written reply submitting therein that it is denied that there were alleged defects in the mobile phone. It is averred that only on the oral version of the complainant it cannot be ascertain that there is any manufacturing defect in the unit and to prove the same complainant has not affixed any technical report. In fact the company provides warranty of one year but the warranty of the unit (warranty means only repair not replacement) is subject to some conditions and the warranty of the unit becomes void in the conditions like liquid logged, physically damaged, Serial No. missing, tampering, mishandling etc. It is averred that the complainant approached the service centre of the company i.e. opposite party no.3 on 07.10.2015 for the first time and the last time before the 15 days of expiry of warranty period which means that the unit was working properly. It is averred that there is no manufacturing defect in the mobile in question. All the other contents of the complaint were stated to be wrong and denied. Opposite parties prayed for dismissal of the complaint with costs. However opposite party no.2 did not appear despite service and was proceeded against exparte vide order dated 03.12.2015 of this Forum.
3. Both the parties led evidence in support of their case.
4. Complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C3 and has closed her evidence. On the other hand ld.counsel for opposite party no.1 & 3 in his evidence has tendered affidavit Ex.RW1/A, document Ex.R1 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that as per invoice Ex.C1 dated 22.10.2014 the complainant had purchased the mobile set for a sum of Rs.22500/- and as per service job sheet Ex.C2 dated 03.10.2015 there was problem of ‘touch not working properly’ and the software was updated. It is also observed that the defect appeared in the handset within warranty period. The contention of ld. counsel for the complainant is that despite repeated requests and submitting the mobile phone with the opposite parties, the mobile set of the complainant could neither be repaired not replaced by the opposite parties and there is manufacturing defect in the mobile set and the handset in question is in the possession of complainant.
7. After going through the file and hearing the parties it is observed that the mobile in question was purchased by the complainant on 22.10.2014 and the defect in the mobile appeared within warranty period. As per complaint and affidavit filed by the complainant, the defects in the mobile set many times but the same could not be repaired by the opposite parties and to prove his contention, ld. counsel for the complainant has placed on record job sheet Ex.C2 and Ex.C3. On the other hand regarding the contention of opposite parties that there was no manufacturing defect in the system as no expert report has been placed on file, we have placed reliance upon the law cited in 2014(3)CLT178 titled as Krishanpal Singh Vs. Tata Motors & others whereby Hon’ble National Commission, New Delhi has held that: “Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like Ops to appoint their own experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect” and as per law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified.
8. In view of the facts and circumstances of the case, it is observed that as per the statement made by the complainant on dated 08.09.2016 the mobile set in question is in the possession of complainant. As such it is directed that complainant shall handover the mobile set in question to the opposite party no.1 and in turn opposite party No.1 i.e. manufacturer shall refund the price of mobile set i.e Rs.22500/-(Rupees twenty two thousand five hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 16.10.2015 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.09.2016.
................................................
Joginder Kumar Jakhar, President
……………………………..
Komal Khanna, Member
…………………………….
Ved Pal, Member.
