PER:
Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 against the opposite parties on the allegations that he has purchased one mobile Phone A-52 8-128 vide IMEI No. 352938777088415 and 354350337088414 of Samsung Company from the opposite party No. 2 on 30.4.2021 for a price of Rs. 28,000/- and accordingly the opposite party No. 2 has issued Bill NO. 486 dated 30.4.2021 in favour of complainant. The complainant has purchased the above said mobile phone from the opposite party No. 2 who is authorized dealer of the opposite party no. 1 and as the opposite party No. 1 is its manufacturer and the opposite party No. 3 is its service centre of the opposite parties. At the time of purchasing the above said mobile phone from the opposite party No. 2 by the complainant, the opposite party No. 2 gave one year warranty of the said mobile phone. After about two months of the purchase of above said mobile phone by the complainant from the opposite party No. 2, the mobile phone started showing defect. The complainant immediately approached the opposite party no. 2 and disclosed the said fact to him and the opposite party No. 2 sent the complainant with the opposite party No. 3 who is authorised service centre of opposite party No. 1. The complainant visited the opposite party No. 3 and handed over his mobile phone to him and requested him to clear the defect. The opposite party No. 3 opened the parts of the mobile phone and clicked photographs of the same and said to the complainant that they have sent the photographs to the opposite party No. 1 and the opposite party No. 3 handed over the mobile phone to the complainant and said the complainant to come with them after 4 days and accordingly the opposite party No. 3 gave complaint No. 4326298815 dated 17.6.2021 on the back of original Bill. After four days, the complainant visited the opposite party No. 3 and the opposite party No. 3 said to the complainant that display of the mobile phone is required to be replaced. When the complainant said to the opposite party No. 3 that the said mobile phone is under warranty period and as such to replace the same but the opposite party No. 3 said to the complainant that the charges of the same would be payable by the complainant and when the complainant refused to pay the said charges, the opposite party No. 3 flatly refused to replace the display of the said mobile phone and the opposite party No. 3 sent the complainant with the opposite party No. 2. When the complainant apprised the situation to the opposite party No. 2 and requested him either to replace the mobile phone with new one or to replace its display but the opposite party No. 2 refused to do so and openly said that for this purpose the complainant should have to pay. As the mobile phone is in warranty period and as such, the complainant is not liable to pay any amount to the opposite parties for replacement of display of mobile phone but the opposite parties have openly said that if the complainant wants to repair his mobile phone, then he should have to pay for replacement of display of mobile phone. The opposite party No.2 has openly said that he would not replace the mobile phone with new one. The complainant approached the opposite parties many a times and requested them either to replace the mobile phone with new one or to replace its display as suggested by the opposite party No. 3 but the opposite parties did not listen the genuine requests of the complainant. The complainant has prayed the following relieves.
- The opposite parties may kindly be directed either to replace the mobile phone make A 52 8-152 vide IMEI No. 352938777088415 and 354350337088414 with new one or to refund his entire money of Rs. 28,000/- alongwith interest at the rate of 18% per annum from the date of its purchase,
- The opposite parties may kindly be directed to pay Rs. 50,000/- as compensation for mental harassment and agony caused to the complainant.
- The opposite parties may also be directed to pay Rs. 15,000/- as litigation expenses to the complainant.
Alongwith the complaint, the complainant has placed on record self attested copy of affidavit of complainant Ex. CW1/A, Self attested copy of bill dated 30.4.2021 Ex. C-1, Self attested copy of complaint Number/ receipt dated 17.6.2021 issued by the opposite party No. 3 in favour of the complainant Ex. C-2.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version by interalia pleadings that the complaint has been filed with mischievous intentions thereby enabling the complainant to enrich him at the cost of respondent No. 1 by filing frivolous claim. The complaint of the complainant deserves dismissal ground alone. There is breach of warranty terms and conditions as the handset has been found “Liquid logged/ damage” due to which internal parts of the handset were damaged and handset was not working. Liquid Damage is warranty void condition, due to breach of warranty the repair is to be done on chargeable basis and complainant refused to pay for repair charges The clause 5 of the Job sheet placed on record reads as follows: - “The product has been accepted for service subject to internal verification. If product is found to be tampere3d, misused, components removed, cracked or liquid logged the same will not be considered under warranty. In such case customer will have to pay for the repair or the product will be returned without repairs.” As the handset was totally dead when it was submitted before OP No. 3 on 17.6.2021 and job sheet was issued as out of warranty. The complainant is not entitled for any relief from this Commission as he has concealed the true and material facts. The complainant has not come before this commission with clean hands. The mobile handset in question has been physically mishandled by the complainant. The complainant has purchased the handset in question on 30.4.2021 and he reported problem in the handset for the first time on 17.6.2021 within 2 months of purchase and usage of the handset. The problem report by the complainant was ‘No display’ OP No. 3 on checking the handset found that handset has been badly damaged due to liquid ingress/ liquid logging, which shows that handset in question has been negligently used. OP No. 3 issued the Job sheet dated 17.6.2021 as out of warranty and told complainant that liquid logging is a warranty void condition. As the product was not covered under warranty estimate of repair was given. But complainant refuses to pay for repair charges and take back his handset without getting it repaired. As per warranty terms Liquid Logging is a warranty valid condition, the repair of handset was not covered under warranty and repair of handset was not covered under warranty and repair was to be done on chargeable basis only. The estimate of repair was given to complainant but complainant refused to pay for repair charges. Liquid logged handset was returned to complainant by opposite party No. 3 without repair. This shows that handset in question has been badly mishandled and negligently used by the complainant and there is no inherit defect in the handset as alleged by the complainant. The complainant has now filed the present complaint alleging totally false facts and concealed the true fact regarding the damaged liquid logged condition of his handset, caused due to his own negligence. Thus present complaint is liable to be dismissed for concealment of true facts. The present complaint is gross abuse of process of law and is totally false, frivolous and baseless. The handset in question has been submitted with the opposite party No. 3 only on 17.6.2021 with problem of ‘No Display/ Handset Dead’ on internal inspection of the handset by OP No. 3, its internal parts were found damaged due to “Liquid Logging” due to which PBA Board & Sub PBA and display of the handset was damaged leading to ‘handset becoming totally dead’. There is no inherit defect in the handset and rather it has been physically mishandled by the complainant leading to ingress of liquid. Due to physical mishandling and liquid damage caused to the handset it was not covered under Warranty. Thus no cause of action arose to the complainant to file the present complaint. Rather complainant is trying to take benefit of his own wrongs by filing the present complaint. The performance of the mobile phone depends upon the physical handling of the product. The liability of the 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. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central approved laboratories in support of alleged submission as required under law. In the absence of any duly qualified independent expert evidence the claim cannot be allowed. The complainant claims the said mobile to be suffering from defects, therefore, it is the legal duty, under the discharge of burden upon the complainant to establish the same by technical expert report but no such report has been adduced by the complainant till date before this commission, hence in the absence of any such Technical expert report the complaint of the complainant cannot be decided as per the provisions of C.P.Act 2019. The replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. For any defect developed after the lapse of warranty or defect due to liquid ingress/ logging the opposite party No. 1 is not responsible for the same. There is no deficiency of service on the part of the opposite party No. 1. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same.
3 The opposite party No. 2 has appeared and filed written version by interalia pleadings that the present complaint is not maintainable and is liable to be dismissed. The complainant has suppressed so many material facts from this commission and not placed true and full facts before this Commission, as such, the complainant is not entitled to any relief from this Commission. The complainant has purchased the mobile from the shop after checking the same and complainant has used the mobile in question about two months and after that the mobile has defected due to negligence of the complainant, because the mobile of the complainant was fell down in the water and opposite party No. 2 is not responsible for the same, in fact the opposite e parties No. 1 and 3 are liable for change/ repair of mobile in question. The complainant not approached before this commission with the clean hands and suppressed so many material facts from this commission as such, the complainant is not entitled to any relief from this Commission. The complainant has got no locus standi and cause of action against the opposite parties. The present complaint has been filed by the complainant with malafide intention with ulterior motive with intent to harass the replying opposite party. The complainant has purchased one mobile phone A 52 8-128 vide IMEI No. 352938777088415 and 354350337088414 of Samsung Company from the opposite party No. 2 on 30.4.2021 for a price of Rs. 28,000/- and accordingly the opposite party No. 2 has issued Bill No. 486 dated 30.4.2021 in favour of complainant. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same.
4 The opposite party No. 3 has appeared and filed written version by interalia pleadings that the present complaint is o t maintainable in the eyes of law. The complainant has not disclosed the true and material facts in his complaint and has filed complaint just to harass the opposite party No. 3. The complainant himself not properly used the mobile in question as per the terms and conditions of guarantee/ warranty provided by the opposite party No. 1. The mobile in question was water logged due to which it became function less/ dead. The defect in the mobile developed only due to the water logging and none else. The water logging of the mobile is due to the negligent use of the mobile by the complainant himself. The opposite party No. 3 came to know about the water logging of the mobile when it duly checked after it opening up. The complainant neither disclosed the fact regarding water logging of mobile at the time of handing the mobile for checking by the opposite party No. 3 nor before this commission. On finding the defect of the water logging of the mobile in question, the opposite party No. 3 duly stated this fact to the complainant and asked him that as the mobile is dead due to water logging, the opposite party No. 3 has to seek approval from the opposite party No. 1 i.e. manufacturing company for the repair of the mobile in question. On acceding by the complainant, the OP No. 3 clicked photographs of the mobile and send it to the OP No. 1 for permission to repair the said mobile. Upon this, the OP No. 3 handed over back the mobile to the complainant on the spot and asked to visit the OP No. 3 after 3/4 days till the approval for repairing the mobile is being received from the OP No. 1. After about 4 days, when the complainant approached to the OP No. 3, the OP No. 3 informed to the complainant that the manufacturing company i.e. OP No. 1 has not given the necessary approval to the OP No. 3 for the repair of the mobile as the OP No. 1 claim that the mobile has got damaged/ dead due to the water logging and the same is warranty void condition and the mobile cannot be repaired at the expenses of the OP No. 1 by the OP No. 3. As the mobile has been dead due to the water logging and same is breach of conditions of the warranty as provided by the OP No. 1. Hence, the mobile in question is required to be repaired at the expenses of the complainant, the OP No. 3 duly stated this fact to the complainant. Upon which, the complainant became aggressive and claim to the OP No. 3 that the opposite parties have to replace the mobile with a new one. The OP No. 3 further advised to the complainant that if he has any further grievance then he may8 raise with the OP No. 1 i.e. manufacturing company. Moreover, the said mobile is in possession of the complainant since 17.6.2021. The complainant is estopped by his own act and conduct from filing the present complaint against the opposite party No. 3. Moreover, no expert opinion from any approved technician or lab has been produced by the complainant to prove his version. The OP No. 3 duly stated to the complainant that the mobile has become dead i.e. due to negligent use and water logging which is breach of condition of warranty as provided by the OP No. 1 due to which the OP No. 3 is not authorised to repair the mobile due to non approval by the OP No. 1 but the complainant remain adamant to replace the mobile in question with a new one from the opposite parties and due to that reason has filed the present complaint. The complainant has got no cause of action arisen against the opposite party No. 3. The opposite party No. 3 is not guilty and negligent as well as deficient in services, so the complainant is not entitled to claim any relief against the opposite party No. 3. The opposite party No. 3 duly stated to the complainant that as the mobile has become dead due to water logging, the defect in the mobile can be traced only when logging, the defect in the mobile can be traced only when the mobile will become in On Condition, so the question of replacing the display of the mobile on the part of the OP No. 3 does not arise at all. The opposite party No. 1 has not sanctioned the necessary approval for the repair of the mobile, the opposite party No. 3 not further repaired the said mobile and prayed that the present complaint may be dismissed.
5 The complainant has filed rejoinder to the written version filed by the opposite parties and denied all the pleas taken in the written version and reiterated the stand as taken in the complaint.
6 We have heard the parties and their respective counsels and have carefully gone through the record placed on the file.
7 In the present case, the complainant has purchased a mobile phone from opposite party No. 2 vide bill No. 486 dated 30.4.2021 of Samsung company and according to complainant some defect has occurred in the mobile phone during the warranty period and the complainant approached the opposite parties but the defect in the mobile phone has not been rectified / removed. On the other hands, according to opposite party No. 1 there is breach of warranty terms and conditions as the handset has been found “Liquid logged/ damage” due to which internal parts of the handset were damaged and handset was not working. Liquid Damage is warranty void condition, due to breach of warranty the repair is to be done on chargeable basis and complainant refused to pay for repair charges. The opposite party No. 1 has placed on record photographs of the mobile in question. Similarly, the opposite party No. 3 has alleged in the written version that the complainant himself not properly used the mobile in question as per the terms and conditions of guarantee/ warranty provided by the opposite party No. 1. The mobile in question was water logged due to which it became function less/ dead. The defect in the mobile developed only due to the water logging and none else. The water logging of the mobile is due to the negligent use of the mobile by the complainant himself. The opposite party No. 3 came to know about the water logging of the mobile when it duly checked after it opening up. As such, these facts show that some defect has occurred in the mobile in question because the complainant approached the opposite parties several times for its repair. Now according to opposite parties No. 1 and 3, the mobile in question was water logged and it happened due to negligence of the complainant. But to prove this fact, the opposite parties No. 1 and 3 have not placed on record report of any independent expert to prove this fact that the mobile in question was water logged. Therefore, the opposite parties No. 1 and 3 have failed to prove on record that the mobile in question is water logged. The complainant has purchased the mobile in question on 30.4.2021 and defect in the mobile occurred after two months of purchase. Hence, the defect in mobile in question occurred within warranty period. However, no expert opinion from any approved technician or lab has been produced by the complainant, as such the complainant is not entitled for replacement of the mobile in question.
8 In view of above discussion the present complaint is allowed and the opposite parties No. 1 and 3 are directed to repair the mobile in question free of cost to the satisfaction of the complainant. The complainant has been harassed by the opposite parties No. 1 and 3 for a long time. As such the complainant is also entitled to Rs.5,000/- as compensation on account of harassment and mental agony and Rs 3,000/- as litigation expenses. Opposite Parties No. 1 and 3 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. The present complaint against the opposite party No. 2 is dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
28.05.2024
