Ex-P A R T E O R D E R
PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) In brief consumer dispute is as under -
The Complainant had purchased Samsung Galaxy SII GT-I9100 mobile phone model from M/s.Zoop (Authorized Dealer) i.e. the Opposite Party No.3 on 31/12/2011 for Rs.29,500/-, vide sale receipt no.2852 as per Exh.‘A’. According to the Complainant, on the receipt the model number purchased by the Complainant is shown as GT-I9100. However, in the box in which the model was sold to the Complainant there was mobile GT-I9100G, which is an inferior model than GT-I9100, with lower performing, chipset & GPU. The photo copy of the box is furnished as Exh.‘B’ alongwith a sample box in which model number GT-I9100G is clearly written on the box. The Complainant has come out with the case that GT-I9100G model demonstrates its slower performance as compared to GT-I9100 in various performance benchmark tests like CPUMark, CPUSpy, GLBenchmark, NenaMark2 & AnTuTu benchmark related to performance. GT-I9100G lags with GT-I9100 in various CPU (processor) performance benchmarks like CPUMark, CPUSpy. Additionally, poor 3D performance has been noted from GT-I1900G model with low frame rates as demonstrated in NenaMark2 benchmark test. The photo copy of benchmark performance comparison results between the two models are furnished in Exh.‘C’. It is alleged that by way of various evidence submitted alongwith complaint, it is proved by the Complainant that Samsung Galaxy SII GT-I9100G and GT-I9100 are not only different models but GT-I9100G is an inferior mobile model than GT-I9100 with lower performing, chipset and alongwith various utilities, applications and games that do not work on GT-I9100G model. The Complainant has provided the list of these utilities, applications and games alongwith complaint.
2) According to the Complainant, he had informed about not providing the mobile model which he had purchased from Opposite Party No.3 initially on 10/01/2012. Thereafter, he had made several correspondences on E-mail with Opposite Party No.1 & 2. According to the Complainant, the Opposite Party made false and misleading statement and informed the Complainant that both the Galaxy SII model GT(I9100) and GT(OI9100G) have the same features/specifications, except for the chipset manufacture and the change in model number is only because of inter coding of the Company and has no barring on the functioning of the phone. The Complainant has come out with the case that on 03/04/2012, the Opposite Party informed the Complainant that -
“With reference to your concern, in which you got GT–9100G instead of GT-9100 in the box after taking follow-up from our branch service team, we came to know that our branch has already offered you the replacement of mobile but you denied accepting the same without compensation.
We again request you to kindly accept the replacement of the same, so that it could be handed over to you, as it is still pending in our warehouse.
We are waiting for your acceptance on the same, we look forward to your support for allowing us to assist you by resolving this concerns.
Looking forward for a great relationship ahead.
Thanking and assuring you of best services always.
Warm regards,
Prashant Kumar
Customer Satisfaction Team.”
3) The Complainant has alleged in the complaint as well as in his evidence of affidavit that the Opposite Party initially claimed that they have given higher model, which later on changed similar model. Lastly agreed as different model and offered to replace the phone with the original purchase mobile but without compensation/ damages. It is contended by the Complainant that in a similar recent case, Opposite Party has given replacement of Galaxy SII model alongwith damages of Rs.10,000/- to a aggrieved customer Mr. Aviral Sangal. The details of which are downloaded from website and annexed at Exh.‘E’. The Complainant has contended that he has suffered the mental agony as he was unable to use all the functions viz; accessing official company e-mail and chat facility which were important in his professional work on daily basis, causing loss damages to his work. The Complainant has therefore, prayed that the Opposite Parties be directed to replace immediately the GT-I9100G mobile model with originally intended purchase of GT-I9100 mobile Samsung Galaxy SII. The Complainant has also prayed to pay a sum of Rs.29,500/- as compensation towards physical strain and mental agony suffered by the Complainant on account of issues faced as described in the complaint including the interest @ 18% from the time of purchase. The Complainant further prayed for Rs.10,000/- towards cost of the complaint with interest @ 18% from the date of complaint till realization.
4) The Opposite Parties are served with notices of the present complaint but all remained absent. On 28th September, 2012, though on behalf of Opposite Party No.1 & 2 the Vakalatnama of Adv.Shri. Sanjay R. Haritwal and Adv.Smt. Mamta Haritwal, is filed on record and time was granted to file the written statement by Opposite Party No.1 & 2, till 06/11/2012 but thereafter they remained absent and the matter was proceeded ex-parte against all the Opposite Parties.
5) The Complainant has filed written argument. We also heard oral argument of the Complainant in person.
6) Upon gonging through the various e-mails regarding the correspondence between the Complainant and the Opposite Party, it appears that the Opposite Party has changed its stand from time to time as regards deficient service and unfair trade practice provided by the Opposite Party to the Complainant. It also appears that the Complainant from time to time informed the Opposite Parties regarding deficient services provided to him at the time of purchasing the mobile as per the receipt no.2852 issued by Opposite Party No.3 dtd.31/12/2011. The evidence of the Complainant placed on record goes unchallenged. The Complainant has specifically contended that as per Exh.‘E’ recently, the Opposite Party has given replacement of Galaxy SII model alongwith damages of Rs.10,000/- to one aggrieved customer Mr. Aviral Sangal. Considering these facts placed on record by the Complainant, we find that the Complainant, as per the offer made by the Opposite Party in the month of April, 2012, is entitled for replacement of the mobile which he intended to purchase GT-I9100 Samsung Galaxy SII by handing over the mobile which had been received from the Opposite Party (GT-I9100G). The case made out by the Complaint that he was unable to use the functions which were important in his professional work on daily basis and sustained loss and damages in his work and thereby suffered mental agony can be said proved by the Complainant. The Complainant has also brought on record that in other similar case of Mr. Sangal, the Opposite Party had paid damages of Rs.10,000/- but denied the claim of compensation made by the Complainant in his various notices. In view of the said fact, we hold that the Complainant is entitled for compensation of Rs.15,000/- towards the mental agony suffered in view of non replacement of mobile model which he had intended to purchase vide receipt dtd.31/12/2011, alongwith interest @ 9% p.a. from the date of filing of present complaint till its realization. The Complainant is also entitled for cost of Rs.3,000/- from the Opposite Parties. In the result the following order is passed.
O R D E R
i. Complaint No.76/2012 is partly allowed against all the Opposite Parties No.1 to 3.
ii. Opposite Party No.1 to 3 are jointly and/or severally directed to replace the mobile GT-I9100G model and provide the mobile model No.GT-I9100 Samsung Galaxy SII which the Complainant intended to purchase from the Opposite Party No.3 vide receipt no.2852, dtd.31/12/2011.
iii. Opposite Party No.1 to 3 are jointly and/or severally directed to pay Rs.15,000/- (Rs. Fifteen Thousand Only) to the Complainant towards the compensation on account of mental agony suffered for not providing the mobile mode which he intended to purchase as per receipt dtd.31/12/2011 alongwith interest @ 9% p.a. from the date of filing of compliant i.e. 11/04/2012 till its realization.
iv. Opposite Party No.1 to 3 are jointly and/or severally directed to pay Rs.3,000/- (Rs.Three Thousand Only) to the Complainant towards cost of this complaint.
v. Opposite Party No.1 to 3 are directed to comply the aforesaid order within 1 moth from the receipt of this order.
vi. Certified copies of this order be furnished to the parties.
