| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 181 of 22-7-2019 Decided on : 13-04-2023 Vikas Garg aged about 40 years S/o Pawan Kumar, H.No. E.W.S.360/A, Ward No.12, Model Town, Phase-I, Bathinda. Versus Samsung India Electronics Pvt.Ltd., B-1, Sector 81, Phase-2, Noida-201305, Distt. Gautam Budh Nagar (U.P). Universal Technologies, Shop No.72, Ground Floor, Aggarsain Market, Amson Pride, Bathinda through its prop./Partner/Manager. Dewan Sons, Samsung Smartphone Cafe, NR Garg Nursing Home, The Mall Road, Bathinda (deleted vide order dated 23-7-2019).
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member. Present For the complainant : Sh. S.P. Singh, Advocate For opposite parties : Sh. Kuljeet Pal Sharma, Advocate, for OP No.1 Opposite parties No.2 Ex-parte. Opposite parties No.3 deleted. ORDER Lalit Mohan Dogra, President:- The complainant Vikas Garg (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Samsung India Electronics Pvt.Ltd., and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that he purchased a mobile handset make Samsung SM- N950FZKDINS NOTE -8 BLACK (64 GB), bearing IMEI No. 352016090841686, worth Rs. 71300.00 from opposite party No. 3 vide invoice No.630, GSTIN:03AAMPB8227E1Z3 dated 10/11/2017. At the time of purchase, the complainant was provided one year full guarantee on behalf of the company, in case of any defect in the handset. The opposite party no. 1 is manufacturer of the said mobile handset and the opposite party no. 2 is the service centre of the opposite party no. 1. It is alleged that after purchasing the said handset, the complainant started using it for personal use but the mobile handset did not prove to be of good quality rather it started creating problem in functioning from the very beginning of its purchase. Display of the handset was not working properly. The complainant took the mobile handset to opposite party No. 3 on 20/1/2018 and after checking the handset, the opposite party no. 3 advised the complainant to take the same to the authorized service center i.e. opposite party No. 2. Accordingly, complainant took the mobile handset to the opposite party No. 2 but the opposite party No. 2 provided formal service and returned the same back to the complainant with an assurance that in future, there will be no problem in the display of the handset, but the phone and display did not work properly. Even Bala G Telecom also checked the set three four times. Complainant visited the opposite party no. 2 and got the handset Checked 3-4 times after 20/1/ 2018 but the opposite party no.2 kept on putting the matter off under one or the other false pretext. It is also alleged that in Oct, 2010, the touch of the mobile handset of the complainant became defective and again complainant took the handset to opposite party No. 2. The opposite party No.2 then replaced the touch of the handset as well as its battery and assured the complainant that now there will be no problem in the functioning of the handset, but even after replacement of the touch as well as battery of the handset, the mobile handset did not work properly as there is inherent manufacturing defect in the mobile handset. The complainant further alleged that since the problem of touch and display continued, he again took the mobile handset to opposite party No. 2 on 4/10/2018 and after checking the handset, the opposite party No. 2 retained the same and assured the complainant to provide the requisite service. Since 4/10/2018 the aforesaid mobile handset of the complainant is lying with the opposite party No.2 and opposite party no.2 has failed to repair the handset as there is inherent manufacturing defect as display and touch of the handset did not work properly from the very beginning of its purchase and even did not work properly despite change of the touch and battery of the handset by the opposite party No.2. The complainant alleged that he repeatedly requested the opposite party No.2 to get his mobile handset replaced with new one or in alternative refund its price i.e. Rs. 71,300/-, but to no effect. Due to the said act on the part of the opposite parties, the complainant is suffering from great mental tension, agony, botheration, for which he claims compensation to the tune of Rs. 25,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to replace the abovesaid mobile handset of the complainant with new one or in the alternative to refund its price i.e. Rs.71,300/- and pay compensation to the tune of Rs.25,000/- in addition to Rs. 5500/- as litigation expenses. On the statement of learned counsel for complainant, name of opposite party No. 3 was deleted vide order dated 23-7-2019. Registered notice of complaint was sent to opposite parties No. 1 & 2, but none appeared on behalf of opposite party No. 2, as such, exparte proceedings were taken against opposite party No. 2. Opposite party No.1 put an appearance through counsel and contested the complaint by filing written reply raising legal objections that the present complaint is bad for misjoinder of parties and no cause of action arose to complainant to file the present complaint against opposite party No. 1. It has been pleaded that complainant has been negligent in using his handset. The handset has been submitted with opposite party No.2 firstly on 18-01-2018 with problem of 'broken display' which was a warranty void condition and handset was duly repaired on chargeable basis and delivered back in OK condition. Then father of complainant submitted the handset with opposite party No.2 on 10-11-2018 and reported the problem 'No Display'. On checking the handset, it was found that handset has fallen many times due to which `Touch/display' became defective. As the product was under warranty, it was duly rectified by changing the display screen and battery of the handset free of cost and delivered back to father of complainant namely Pawan Kumar in OK condition. Thereafter complainant has not reported any kind of problem in his handset. Now complainant for the reason best known to him has filed the present complaint alleging totally false facts. It has been further pleaded that on both the occasions i.e. 18-01-2018 & 10-11-2018, when the handset in question was submitted with opposite party No.2, on checking, the hand set was found to be mishandled leading to breaking of display screen on first occasion i.e. 18-01-2018 and complainant admitted his fault and paid for repair charges. Again on subsequent occasion there was no display in the handset due to mishandling and falling of the handset. But the defect in the handset was covered under warranty thus it was duly rectified by changing the required parts free of cost. It is further pleaded that the obligation of opposite party No. 1 under warranty is subject to the warranty terms and conditions as mentioned in warranty card supplied with the product. The performance of the mobile phone depends upon the physical handling of the product. In the present case the mobile has been badly mishandled by the complainant, leading to breaking of the display on one occasion and display of the handset not properly working on 2nd occasion. The liability of opposite party No. 1 is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. No such assurance to replace the hand set is given by opposite party No. 1 under the terms of the warranty and the complainant cannot claim more than he has agreed. The other preliminary objections are that the complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. The complainant has neither alleged specific irrepairable manufacturing defect and inferior quality of the specific part of the product nor filed an documentary evidence i.e. authenticated report of independent expert and qualified person of central Approved Laboratories in support of alleged submission as required under law. The present complaint is gross misuse of process of law. The opposite party No. 1 or its service centre has never denied after sales services to the complainant and they are still ready to provide service to complainant subject to warranty terms and conditions. The complainant has filed the present complaint with malafide intention to extract money from opposite party No. 1 by dragging in unwanted litigation. On merits, the opposite party No. 1 reiterated its version as pleaded in preliminary objections and detailed above. After controverting all other averments of the complainant, the opposite party No. 1 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 22.7.2019 (Ex. C-1) and the photocopy of bill (Ex.C-2). In order to rebut the evidence of complainant, opposite party No.1 tendered into evidence affidavit of Anup Kumar dated 15.9.2019 (Ex.OP-1/1) and the documents (Ex. OP-1/2 to Ex. OP-1/5). Learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. The main contention of the counsel for the complainant is that complainant has purchased Samsung SM-950FZKDINS NOTE-8 Black (64 GB) vide Ex. C-2 but the said mobile phone was having manufacturing defect and the same should be replaced with a new one. However, the said contention has been resisted by the opposite party on the ground that the mobile phone was mishandled by the complainant but inspite of that, mobile phone was repaired by the opposite party free of cost and there is no inherent manufacturing defect in the mobile phone. Since, there is no report of any expert to prove this fact that the mobile phone is having manufacturing defect, the complaint is not entitled for its replacement. A perusal of acknowledgement of Service Request shows that mobile phone of the complainant was repaired by opposite parties with replacement of battery and display. However, this Commission is of the view that since the mobile phone was purchased by the complainant on 10-11-2017 and was handed over to the opposite party No. 2 on 4-10-2018, within a period of warranty of one year, as such, the opposite party cannot refuse to repair the same to the satisfaction of the complainant. Accordingly, complainant has fully established and proved deficiency in service on the part of the opposite parties No. 1 & 2 of having failed to repair the mobile phone within warranty period. Accordingly, complaint is partly allowed and opposite parties No. 1 & 2 are directed to repair the mobile phone of the complainant free of cost. The opposite parties No. 1 & 2 are also directed to pay Rs. 1,000/- to complainant on account of mental tension, harassment and cost of litigation. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 13-04-2023 (Lalit Mohan Dogra) President (Shivdev Singh) Member
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