DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
D.F. Case No.129/2012
Date of filing:21/08/2012 Date of disposal:30/05/2013
Complainant: Tapas Pal, S/o. Rabindranath Pal, at Badamtala, Kalna Road (North of Arabinda
Stadium), P.O., P.S. & Dist.-Burdwan, Pin-713101.
VERSUS
Opposite Party: 1. Samsung India Electronics Pvt. Ltd, Represented herein by its Regional
Manager, having its Regional Office at 10 A, Pressman House, 2nd floor,
Lee Road, Lala Lajpat Roy Sarani, Kolkata-700 020.
2. The Proprietor, “New Telelink”, Pirpukur, Kalna Road, P.O., P.S. &
Dist.-Burdwan, Pin-713101.
3. The Manager/Proprietor, “S.P.Infotech”, G.T.Road, Officers’ Colony,
Near Kali Mandir, Burdwan-713103.
Present : Hon’ble President: Sri Udayan Mukhopadhyaya
Hon’ble Member : Smt. Silpi Majumder
Hon’ble Member : Sri Durga Sankar Das
Appeared for the Complainant: Ld. Advocate Sourav Roy.
Appeared for the Opposite Party No.1 & 2: Ld. Advocate P.Banerjee & Others
Appeared for the Opposite Party No.3: Ld. Advocate Puja Debnath.
JUDGEMENT
This complaint is filed by the Complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the OPs in respect of the defective mobile phone set.
The brief fact of the case of the Complainant is that he purchased a mobile phone set of the Op-1 Company from the shop of the Op-2 on 24.11.2011 against payment of consideration amount of Rs.2750/- and since then the OP-1 and 2 agreed to render service to the Complainant and the OP-1 warranted to replace the said mobile set for any defect or for its any disorder within a period of one year from the date of its purchase. On 24.04.2012 the Complainant found that the said mobile set is not working and even he failed to see anything on its screen. Immediately on the self same date he met the OP-2 narrating its problem and then he was suggested by the OP2 to go to any authorized service centre of the OP-1 i.e. the OP-3 and the Complainant was even told that though there is a warranty for one year for the set, they have nothing to do. The Complainant went to the Op-3 and narrated the problem of the mobile set as well as the warranty for replacement as promised by the OP-1 and 2, the Op-2 simply received the said mobile set and a receipt was handed over to him. On the next day i.e. 25.04.2012 when the Complainant again went to the OP-3, the OP-3 charged an amount of Rs.85/- for their service. Being compelled the Complainant paid the said amount and when the OP-3 handed over the mobile set to him he found that the Op-3 did nothing and the same was not working as earlier. Even the Complainant got misbehavior from the OP-3. Thereafter on several occasions the Complainant met the OP-2 and 3 and requested them either to refund the cost of the mobile of Rs.2750/-+Rs.85/- or to replace the said mobile set, but to no effect. It is very unfortunate that the OPs have failed to keep their promise in respect of rendering services and illegally realized money from him. As the OPs have given warranty they bound either to replace the set with a new defect free one or to refund the cost of the mobile set as paid by him during its purchase. Due to deviation from their commitment the Complainant had to face mental and physical harassment and such action of the Ops can easily be termed as deficiency in service for which he is entitled to get compensation to the tune of Rs.10,000/- from the OPs along with litigation cost. Filing this complainant the Complainant has prayed for abovementioned direction upon the OPs.
This complaint has been contested by the OP-1 by filing written version wherein it is contended that the Complainant approached before the service centre for the first time on 25.04.2011 after its purchase on 24.011.2011. On examination of the said mobile set it was found that the set was water logged and such case shall be treated as a warranty void and moreover for this purpose no warranty was extended. The Complainant was given an estimate for its repairing, but thereafter the Complainant did not turn up and filed this frivolous case. The Op-1 has prayed for dismissal of this complaint with cost.
The petition of complaint has been contested by the Op-3 by filing written version wherein it is mentioned that when the Complainant visited the OP-3 with the mobile set being out of order, it was intimated to him that his mobile set was not working and nothing could be seen on the screen as water has been penetrated in it and was totally water logged. The same was conveyed to the Complainant who admitted the same. The OP-3 has further intimated that for detection/inspection Rs.85/- will be charged. Be it mentioned that non-working of mobile set for burnt cases, water logged cases lightning, abnormal voltage and Act of god as determined by the authorized service centre do not fall within the ambit of warranty and come within the void warranty, where the Consumer has to bear the entire charges for repair. Such rules and regulations were intimated by the company during its purchase and stating the same a warranty card was also supplied to the Complainant. Being completely aware of the rules and regulations the Complainant approached the OP-3 and the OP-3 had extended excellent service and hence there was no deficiency in service on its part in providing service. Therefore the instant complaint has been filed by the Complainant with malafide intention for wrongful gain. Prayer has been made by the OP3 for dismissal of the complaint u/s 26 of the C.P. Act.
The Complainant and the OP-3 have filed their respective evidence on affidavit along with several documents in support of their contentions. The Complainant and the OP-3 have filed written notes of argument and the Op-2 has advanced argument through the Ld. Counsel.
We have perused the record and several documents along with the written notes of argument filed by the Op-3 and the Complainant and heard argument from the OP-2 at length. In the written notes of argument the OP-1 has mentioned that as the set in question was water logged due to mishandling by the Complainant himself, the said defect does not fall within any rules and regulation of the warranty clause. Therefore the Complainant was under obligation to pay the repairing cost, but the Complainant did not pay the same the service centre could not repair the same. The OP-3 has stated that after taking the estimation of its repairing the Complainant did not turn up, so there was no deficiency in service on behalf of the OP-3. The OP-2 has argued that this case is not maintainable before the Consumer Forum in view of the judgment passed by the Hon’ble Supreme Court and moreover where this case is related defective goods, the Complainant was under the obligation to place the set in question before this Ld. Forum by making prayer to send the same to an expert for detection of its defects, but the Complainant did not take any step in this regard.
In this respect we may mention the judgment passed by the Hon’ble Supreme Court, reported in 2009 CTJ 1062 (SC) (CP), where Their Lordships have held ‘Consumer Forums have no jurisdiction to entertain complaints relatable to telecom disputes.’ As per the judgment passed by the Hon’ble National Commission, reported in 2011 CTJ 551 (CP) (NCDRC), where Their Lordships have held ‘any dispute between a telephone/mobile phone subscriber and the telegraph authority can be resolved only by taking recourse to arbitration proceedings.’ We have also noticed that the Hon’ble National Commission has passed the abovementioned judgment relying on the judgment of the Hon’ble Supreme Court in the case of General Manager, Telecom-vs- M. Krishnan and another. The aggrieved party approached before the Hon’ble Supreme Court against the order passed by the Hon’ble national Commission by filing SLP, but the Hon’ble Supreme Court was pleased to dismiss the said SLP. Very recently the Hon’ble State Commission has also passed an appeal filed by the M/s. Aircel Mobile service (Kolkata), being aggrieved by the judgment and order passed by the District Forum, Kolkata Unit-I being appeal no-FA/279/2012 based on the judgment passed by the Hon’ble National Commission (Revision petition no-1073/2010, Prakash verma vs. Idea Cellular Limited and another), wherein it has been held that the judgment of the Hon’ble Supreme Court is binding on all the subordinate courts and there is no scope for interference.
In view of the abovementioned judgments we are bound to rely on the said judgments and in the instant case also we are of the opinion that the instant dispute can be resolved by taking recourse to arbitration proceedings only.
Going by the foregoing discussion hence, it is ordered, that the complaint be dismissed on contest. However considering the facts and circumstances we are inclined not to impose any cost. With the abovementioned observation the complaint be disposed of accordingly.
(Udayan Mukhopadhyaya)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder)
Member,
D.C.D.R.F., Burdwan.
(Mrs. Silpi Majumder) (Sri Durga Sankar Das)
Member, Member,
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
