DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/328/2021

Date of Institution : 20.12.2021

Date of Decision : 22.08.2022

Manjit Singh son of Karnail Singh Gill resident of B-V/1334, Thikriwal Road, Barnala-148101.  …Complainant

Versus

1. Samsung India Limited, 6th Floor, DLF Centre, Sansad Marg, 6th Floor, DLF Centre, Sansad Marg, New Delhi-110001 through its CEO. 

2. M/s. RK Traders, 22 Acre, Barnala-148101 through its Proprietor/ Partner.

3. M/s. Balaji Telecom, St. No. 0B, Bibi Wala Road, Bathinda-151001 through its Proprietor/Partner/Incharge.

…Opposite Parties

Complaint under Consumer Protection Act.

Present: Sh. NK Singla Adv counsel for complainant.

Sh. Chander Bansal Adv counsel for opposite party No. 1.

Opposite parties No. 2 and 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 filed the present complaint under the Consumer Protection Act 2019 against Samsung India Limited, New Delhi and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the complainant purchased one mobile set Samsung make for Rs. 78,000/- in cash for personal use from opposite party No. 2 vide invoice dated 31.12.2019 which has been manufactured by opposite party No. 1 and full warranty of one years was given to the complainant from the date of purchase. 

3. It is further alleged that after about a week the said phone went out of order and was not on so the complainant handed over the aid mobile to opposite party No. 3 on 10.1.20202 and acknowledgment of service request was given to the complainant by the opposite party No. 3. When the complainant visited the opposite party No. 3, who told the complainant that the said mobile has been tampered by some mechanic who was not authorized to do so but the complainant never visited any mechanic for removal of said defect. The complainant requested the opposite parties to replace the said mobile with new one but to no effect which amounts to deficiency in service and unfair trade practice on their part. The complainant also served a legal notice dated 28.9.2020 upon the opposite parties and as per reply dated 23.10.2020 of said notice complainant provided the complete information of the product and phone number to opposite party No. 1 but later on they also do nothing and complainant sent a reminder dated 25.11.2021 but of no use. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to replace the said mobile with a new one of same model or to pay the price of the mobile set of Rs. 78,000/- alongwith interest.  

2) To pay Rs. 1,00,000/- on account of compensation for mental agony and harassment. 

3) To pay Rs. 20,000/- as litigation expenses.  

4) Any other fit relief may also be given. 

4. Upon notice of this complaint, the opposite party No. 1 filed written statement taking preliminary objections that as per record of authorized service centre of opposite party No. 3 the handset in question has been submitted with them on 10.1.2020 by complainant with problem of No Power as the handset was totally dead so it cannot be checked immediately at the time of submission of handset with authorized service centre. It was mentioned in job sheet in remarks ELS not done. As per Clause 5 of the job sheet issued by authorized service centre to complainant the product is accepted for service subject to verification. If product is found to be tampered, damaged, misused, liquid logged etc the same will not be eligible under warranty and customer will have to pay for the repair services. The Engineer of the service centre checked the handset and found that PBA tampered and inside connecting pins were damaged. As per opinion of technician the handset in question has been opened by outside source. As per warranty terms and conditions Tempering is a warranty void condition and repair will be done on chargeable basis only. The estimate of repair was given by opposite party No. 3 to complainant but he refused to pay for repair charges so the handset was not repaired and complainant was asked to take back his handset but he did not take back his handset from opposite party No. 3. Opposite party No. 3 also wrote letter dated 24.1.2020 to the complainant to take back his handset but of no use. Therefore, there is no deficiency in service on the part of answering opposite party. The handset has been opened and tempered by some third party prior to submission of handset with authorized service centre on 10.1.2020 by complainant. The handset in question has been physically tempered leading to damaging of PBA and Sub-PBA. The liability of answering opposite party is subject to terms and conditions of the warranty as mentioned in warranty card supply with the product at the time of sale. The complainant neither alleged any manufacturing defect nor filed any documentary evidence i.e. report of independent expart and qualified person and in the absence of any independent expert evidence the claim cannot be allowed. 

5. On merits, it is submitted that the complainant intentionally refused to take back his mobile from the opposite party No. 3. The answering opposite party is only liable to repair the product in question on chargeable basis as warranty terms have been breached by the complainant. Rest of the submissions already mentioned in the preliminary objections so there is no need to repeat the same. However, lastly the opposite party No. 1 prayed for the dismissal of the present complaint with costs. 

6. The opposite parties No. 2 and 3 preferred to remain exparte. 

7. In support of his complaint, the complainant tendered into evidence copy of invoice Ex.C-1, copy of specification of mobile printed on mobile box Ex.C-2, copy of warranty card Ex.C-3, copy of acknowledgment of service request Ex.C-4, copy of legal notice Ex.C-5, copies of postal receipts Ex.C-6 to Ex.C-8, reply to legal notice Ex.C-9, copy of notice Ex.C-10, copies of postal receipts Ex.C-11 to Ex.C-13, copy of Aadhaar card Ex.C-14, affidavit of complainant Ex.C-15 and closed the evidence.

8. To rebut the case of the complainant, the opposite party No. 1  tendered in evidence copy of job sheet Ex.OP-1/1, photograph Ex.OP-1/2, copy of estimate Ex.OP-1/3, copy of letter dated 24.1.2020 Ex.OP-1/4, copy of postal receipt Ex.OP-1/5, copy of warranty card Ex.OP-1/6, copy of reply of legal notice dated 23.10.2020 Ex.OP-1/7, copy of dispatch list Ex.OP-1/8, copy of reply of legal notice dated 6.1.2022 Ex.OP-1/9, copy of dispatch list of courier Ex.OP-1/10, affidavit of Sandeep Sahijwani Ex.OP-1/11 and closed the evidence on behalf of opposite party No. 1. 

9. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments also filed by the appearing parties. 

10. It is admitted fact between the parties that the complainant purchased the mobile set manufactured by opposite party No. 1 from opposite party No. 2 vide bill dated 31.12.2019 Ex.C-1 for Rs. 78,000/-. It is also admitted by the opposite party No. 1 that the mobile set has warranty of one year from the date of purchase. It is proved on the file vide copy of acknowledgment of service request dated 10.1.2020 Ex.C-4 that the mobile set got defective only after purchase of 10 days and complainant handed over the same to the opposite party No. 3 for its repair. On this job sheet it is clearly mentioned that mobile set is in full warranty period. Further, it is also mentioned on the document Ex.C-4 that the defect in the mobile set is Not Power On. Further, from this document Ex.C-4 it is also proved on the file that opposite party No. 3 received the mobile set from the complainant and they have not returned the same to the complainant after repair. 

11. We have perused all the documents carefully. The main objection of the opposite parties for not repairing the mobile set is that the mobile set was tampered and opened by some unauthorized person and complainant breached the terms and conditions of warranty so the mobile set cannot repair under the warranty and only repair chargeable basis. But to prove this objection the opposite parties have not filed report or affidavit of any expert/technical who deposed that the mobile set was tempered by the complainant. Further, in our view the complainant never tampered such a expensive mobile set only after purchase of 10 days when it is in full warranty, so this objection of the opposite party is no force. 

12. Further, it is admitted by the opposite party that the mobile is in possession of the opposite party No. 3 from 10.1.2020 and the opposite party never tried to hand over the same to the complainant through this Commission during the pendency of the present complaint which also proved the deficient services of the opposite party. This fact also proved that the mobile set is in possession of the opposite party No. 3 for the last more than 2-1/2 years and they have not given any justification in this regard. 

13. On the perusal of the file it established that the opposite party No. 2 is the seller of mobile set in question. The seller is acting an Agent of the opposite party No. 1. Therefore, there is no liability arisen of opposite party No. 2 for any defect in the mobile set. In this way, by not repairing the mobile set of the complainant within warranty free of costs and not returning his mobile set for the last more than 2-1/2 years is clear cut deficiency in service and unfair trade practice on the part of the opposite parties No. 1 and 3. 

14. In view of the above discussion, present complaint is partly allowed against the opposite parties No. 1 and 3 and opposite parties No. 1 and 3 are directed to replace the mobile set of the complainant with a new one of the same model. The opposite parties No. 1 and 3 are also directed to pay Rs. 5,500/- to the complainant as compensation for mental tension and harassment and Rs. 3,300/- as costs and litigation expenses. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order, failing which the opposite parties No. 1 and 3 are directed to refund the billing amount of the mobile set i.e. Rs. 78,000/- to the complainant alongwith interest at the rate of 6% per annum from the date of filing of present complaint till its actual realization alongwith above mentioned compensation and costs. The opposite parties No. 1 and 3 jointly and severally liable to comply with 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:

        22nd Day of August 2022

 

 

            (Ashish Kumar Grover)

            President

              

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member