DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.
Complaint Case No: CC/47/2023
Date of Institution: 21.04.2023
Date of Decision: 13.08.2024
Gurdeep Singh son of Gurnam Singh, resident of B-8-175, Superdnti Mohalla, Barnala 148101.
…Complainant
Versus
1. Samsung India Ltd., 6th Floor, DLF Centre, Sansad Marg, New Delhi-110001 through its CEO;
2. M/s R.K. Traders, 22 Acre, Barnala 148101 through its proprietor.
3. M/s Kamlesh Telecom (Service Centre), Opp. New Bus Stand, Barnala 148101 through its proprietor/partner/incharge.
…Opposite Parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
Present: Sh. N.K. Singla Adv counsel for complainant.
Sh. Chander Bansal Adv counsel for O.P-1.
Opposite party No. 2 & 3 exparte.
Quorum.-
1. Sh. Ashish Kumar Grover: President
2. Smt. Urmila Kumari: Member
3. Sh. Navdeep Kumar Garg: Member
(ORDER BY ASHISH KUMAR GROVER PRESIDENT):
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Samsung India Ltd., 6th Floor, DLF Centre, Sansad Marg, New Delhi-110001 through its CEO & others (in short the opposite parties).
2. The facts leading to the present complaint are that the complainant purchased one mobile set of Samsung make Model Fold 3, 5G 12+256gb IMEI No. 350843354601634 for Rs. 1,49,900/- in cash for his personal use from opposite party No. 2 vide invoice No. 11863 dated 19.1.2022 manufactured by opposite party No. 1 and full warranty of one year was given to the complainant. It is further alleged that on 6.10.2022 suddenly defect occurred in display line and partial touch not worked and there was also dent in display in the mobile. As such the complainant handed over the said mobile to opposite party No. 3 as per advice of opposite party No. 2 on 7.10.2022 and Mr. Himanshu Goyal brother of proprietor of opposite party No. 2 also accompanied with the complainant and Bill No. 4357239677 as acknowledgement of service request was given to the complainant by opposite party No. 3. It is further alleged that when the complainant visited the opposite party No. 3 he told the complainant that the mobile is out of warranty and refused to repair. The complainant made repeated requests to the opposite parties to replace the said mobile with a new one of the same model, but with no result and the same amounts to deficiency in service and unfair trade practice on the part of the opposite parties. Hence, the present complaint is filed for seeking the following reliefs.-
- The opposite parties may be directed to replace the mobile with a new one of the same model or to pay the price of the mobile i.e. Rs. 1,49,900/- alongwith interest.
- To pay Rs. 1,00,000/- as compensation for causing physical and mental harassment.
- Further, to pay Rs. 20,000/- as litigation expenses.
3. Upon notice of this complaint the opposite party No. 1 appeared and filed written version by taking preliminary objections interalia on the ground that the present complaint is bad for mis-joinder of parties and complainant has no cause of action to file the present complaint. It is further alleged that the handset in question was submitted with opposite party No. 3 on 7.10.2022 after 9 months of purchase and extensive usage, and on checking the handset it was found that handset has been physically damaged due to physical damage and it is out of warranty, there was line in Display Screen, there was Dent in the display of the handset which was result of internal damage caused to the display due to external force or pressure due to mishandling and there were numerous dents on the outer body of the handset in question which were apparently visible. It is further alleged that the physical damage is a warranty void condition and repair is to be done on chargeable basis and the estimate of the repair was given to the complainant by opposite party No. 3 but he refused to pay the same. The complainant is not entitled for any relief from this Commission as he has concealed the true facts and material. It is further alleged that the obligation of the answering opposite party under warranty is subject to the warranty terms and conditions as mentioned in the warranty card supplied to the complainant etc.
4. On merits, it is submitted that as per warranty terms Physical Damage is a warranty void condition and repair is done on chargeable basis only. It is denied that on 6.10.2022 in the evening suddenly defect occurred in display line and partial touch not worked and there was also dent in display of the mobile. It is further submitted that dent and line in the display does not appear suddenly it occurs due to some physical external force or pressure. It is matter of record that complainant submitted the mobile phone with opposite party No.3 on 7.10.2022 and service job sheet mentioning that handset in question is out of warranty was issued to complainant by opposite party No. 3 and the estimate of repair was also given to complainant but complainant refused to get his handset repaired on chargeable basis. It is admitted that on 7.10.2022 when complainant submitted his handset with opposite party No.3 then opposite party No.3 after checking the condition of the handset told the complainant that handset in question is out of warranty due to physical damage caused to the handset. It is denied that opposite party No.3 refused to repair the handset. Rather, the opposite party No. 3 told the complainant that due to warranty void condition repair will be done on chargeable basis and estimate of repair was given to the complainant but the he refused to get handset repaired on chargeable basis, hence handset was not repaired and complainant advised to take back his handset. All other allegations of the complaint are denied and prayed for the dismissal of complaint.
5. The opposite parties No. 2 & 3 were proceeded against exparte vide order dated 21.6.2023 due to non appearance.
6. The complainant file rejoinder to the written version of opposite party No. 1 and denied the averments as mentioned in the version.
7. The complainant tendered into evidence affidavit of complainant Ex.C-1, copy of bill Ex.C-2, copy of job sheet Ex.C-3, copy of legal notice Ex.C-4, postal receipt Ex.C-5 to Ex.C-7, copy of adhaar card Ex.C-8, copy of warranty card Ex.C-9 and affidavit of Himanshu Goyal Ex.C-10 and closed the evidence.
8. The opposite party No. 1 tendered into evidence affidavit of Sandeep Sahijwani Ex.O.P1/1, copy of job sheet Ex.O.P1/2, photographs Ex.O.P1/3 to Ex.O.P1/7, copy of warranty card Ex.O.P1/8 (6 pages) and closed the evidence.
9. We have heard the Ld. Counsel for the parties and have gone through the record on the file. Written arguments filed by the parties.
10. The complainant has purchased mobile set in question vide invoice No. 11863 dated 19.1.2022 i.e. Ex.C-2 and the opposite parties also admitted that the mobile set in question was having warranty of one year subject to terms and conditions. Ld. Counsel for the complainant argued that the complainant approached the opposite party No. 3 on 7.10.2022 with the problem of display line/partial touch not worked and there was dent in display in the mobile and in this regard the opposite party No. 3 issued the job sheet i.e. Ex.C-3. Ld. Counsel for the complainant further argued that the opposite party No. 3 retained the mobile set in question and till today they have not returned the same. It is evident from Ex.C-3 that the complainant handed over the mobile set to the opposite party No. 3 and opposite party No. 3 tick the mark out of warranty column, but the opposite party No. 3 has not mentioned the reasons for out of warranty. The Ld. Counsel for the complainant further argued that despite this fact that mobile set in question was under warranty the opposite parties refused to repair the same.
11. On the other hand, Ld. Counsel for the opposite party No. 1 argued that the mobile set in question was submitted with the opposite party No. 3 and on checking the handset it was found that handset is physically damaged, due to physical damage and it is out of warranty, there was line in Display Screen, there was Dent in the display of the handset which was result of internal damage caused to the display due to external force or pressure due to mishandling. To prove the above said version the opposite party No. 1 failed to produce any evidence. The opposite party No. 1 can easily produce the mobile set in question as the same is in the possession of service centre i.e. opposite party No. 3. The opposite party No. 3 can produce the best evidence as the opposite party No. 3 inspected the mobile set in question but the opposite party No. 3 remained exparte.
12. On the perusal of the entire evidence it is nowhere proved that the opposite parties tried to return the mobile set to the complainant. Ld. Counsel for the opposite party No. 1 further argued that to prove manufacturing defect in the mobile set in question the complainant failed to produce any expert report. But from the facts and circumstances it is established that the mobile set in question are still in the possession of opposite party No. 3, therefore the complainant is unable to produce any expert evidence to prove the manufacturing defect. As the mobile set in question is still lying with the opposite party No. 3, therefore the onus to prove the fact that the mobile set is not suffering from manufacturing defect is shifted upon the opposite parties. But the opposite parties have failed to produce any cogent evidence to prove their version. The opposite party No. 3 is retaining the mobile set in question from 7.10.2022 and no efforts made by the opposite parties to return the same. From the above discussion it established that by not repairing or replacing or refunding the amount of defective mobile set which was within warranty period is deficiency in service and unfair trade practice on the part of the OPs.
13. Therefore, in view of the above discussion the present complaint is partly allowed and the opposite parties are directed to replace the mobile set in question with a new one of the same model or refund the purchase amount i.e. Rs. 1,49,900/- to the complainant alongwith interest @ 7% per annum from the date of filing the present complaint till its realization. The opposite parties are further directed to pay an amount of Rs. 5,500/- on account of mental agony and harassment as well as litigation expenses to the complainant. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
13th Day of August, 2024
(Ashish Kumar Grover)
President
(Urmila Kumari)
Member
(Navdeep Kumar Garg)
Member
