DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint Case No: 178 of 2012] -------------------------------- Date of Institution : 09.04.2012 Date of Decision : 16.10.2012 -------------------------------- Sachin, R/o #504, Phase-II, Ram Darbar, Chandigarh. ---Complainant V E R S U S [1] Samsung India Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Suites, New Delhi – 110044, through its Managing Director. IInd address:- Samsung India Pvt. Ltd., SCO No.4-5, Sector 8-C, Chandigarh. [2] M/s Sparkle, Bay Shop No. 382, Sector 44-D, Chandigarh, through its Manager. ---Opposite Parties BEFORE: SH. LAKSHMAN SHARMA PRESIDENT SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Vivek Mohan Sharma, Counsel for Complainant. Sh. Sandeep Suri, Counsel for Opposite Party No.1. Opposite Party No.2 Ex-parte. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainant has filed the present complaint, against the Opposite Parties on the ground that the Complainant purchased one SAMSUNG mobile handset Model GT-S5333 having IMEI/RSN No. RDSB137020N (354756040505769) from M/s Chawla Brothers, SCO No. 1035, Sector 22-B, Chandigarh by making a cash payment of Rs.7900/- vide Invoice No. 429, dated 11.4.2011 (Annexure C-1). The said mobile handset within few days of its purchase started giving trouble and in order to get the defect rectified, the Complainant approached the authorized service centre of the Opposite Party No.1 on 21.4.2011. Copy of service request is at Annexure C-2 with the complaint. The Complainant has claimed that after repairs the handset functioned for a couple of months but once again was taken to the service centre on 13.7.2011. Though the authorized service centre of Opposite Party No.1 assured the Complainant of best of its services, but the handset in question kept on giving trouble. The job sheet dated 17.7.2011 is annexed as Annexure C-3 with the complaint. Thereafter, Complainant had get the mobile handset repeatedly repaired on 10.12.2011, 7.2.2012 and the job cards are annexed at Annexure C-4 and C-5 respectively. The Complainant being fed up with the repeated rounds of service centre handed over the handset to Opposite Party No.2, but Opposite Party No.2 kept on delaying the matter on one pretext or the other and claiming that a request on behalf of the Complainant has already been made with the company to get the matter resolved and replace the defective handset with a new one or in the alternate refund of the purchase amount be made to him. The Opposite Party No.2 kept on saying that as and when any response is received from the side of Opposite Party No.1, the needful would be done. The mobile handset in question which was deposited with the Opposite Party No.2 is still in its custody. The Complainant on not hearing anything positive from the side of the Opposite Parties, served a legal notice upon the Opposite Parties (Annexure C-6 & C-7), and on not eliciting any response, preferred to file the present complaint, seeking relief of replacement of the defective mobile handset, with a new one, OR in the alternate, refund of Rs.7900/-, along with interest. The Complainant has further sought an adequate compensation along with litigation fee of Rs.5000/-. The complaint of the complainants is duly verified and is supported by his detailed affidavit. 2. Notice of the complaint was sent to Opposite Parties seeking their version of the case. However, despite service, nobody has appeared on behalf of Opposite Party No.2, therefore, it was proceeded against exparte on 09.07.2012. 3. The Opposite Party No.1 has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the Complainant has refused to take back the repaired mobile handset in question, when the same was handed over to him in the Forum. Even that the Complainant was asked to collect the same from the Service Centre and a registered letter dated 07.04.2012 was written to the Complainant for this purpose, but the Complainant did not turn up. It is admitted that the mobile handset was under warranty when the same was brought for repairs to Opposite Party No.2 and the repairs were carried out as per the warranty conditions. The necessary repairs required to make the mobile in working condition were done during the warranty period and there was no occasion for its replacement. It is further claimed that the mobile is an internet based device and runs on software, the use of this handset on the internet may result in the software getting corrupted on account of virus through internet usage. The mobile handset in question was brought for repairs, as the software had got corrupted and the same was once again re-loaded; the Complainant was also advised to take appropriate steps for protection of the mobile handset to avoid same problem, through virus infliction again. This problem is explained as attributable to its use over the internet and is claimed to be not a manufacturing defect. It is also mentioned that the Complainant should have used appropriate virus protection software for e.g. quick heal etc. which are available in the market, so as to get rid of this repeated problem that he was facing rather than blaming the Opposite Parties and claiming the defect as manufacturing defect. On merits, the Opposite Party No.1 has repeated their preliminary objections, while replying to the averments of the present complaint, in their para-wise reply. Thus, claiming no deficiency in service or unfair trade practice on their part, the answering Opposite Party has prayed for the dismissal of the complaint with heavy costs. The reply of the Opposite Party No.1 is duly supported by detailed affidavit of Sh. Avtar Singh Saini, Service Engineer of Opposite Party No.2. 4. Having gone through the entire complaint, version of the Opposite Party No.1, the evidence of the parties and with the able assistance of the learned counsel for the Complainant and Opposite Party No.1, Opposite Party No.2 being ex-parte, we have come to the following conclusions. 5. The fact of mobile handset model WAVE 5333 purchased by the Complainant for a sum of Rs.7900/- on 11.4.2011 is admitted. Even the fact that the said mobile handset was repaired on four different occasions is also not denied by the Opposite Parties. However, the Opposite No.1 while contesting the claim of the Complainant made through the present Complaint, has categorically denied any manufacturing defect in the mobile handset in question by claiming that it being an internet based machine is prone in getting corrupted due to creeping in the virus which is a normal problem if a proper software mechanism to avoid the same is not installed. As the Complainant is claimed to have failed to secure his handset from this problem, thus, it was giving a repeated trouble. 6. We have gone through the four different job cards tendered by the Complainant as Annexure C-2 to Annexure C-5 respectively, and each job card mentions a different problem, which was purported to have been rectified by the Opposite Parties. There is no mention whatsoever of the problem of the handset being infected with virus. Nor there is any mention that the same has been removed. The different problems mentioned are touch screen process slows, showing missing digits, last number auto dial, auto calling with inserted headphone, camera problem and auto re-dial etc. are found mentioned on all these job cards. The Opposite No.1 has failed to convince us that they had on any occasion had advised the Complainant to install an anti-virus software. The Opposite Party No.1 has also not brought on record any literature which was made available to the Complainant at the time of purchase of the handset, advising him of different things necessary for the correct working of the mobile handset in question. The issue of mobile handset getting corrupted with virus is only an after thought and the same is not believable. 7. The Opposite Party No.1 has claimed that the mobile handset in question is lying with it and the same has been repaired to their best satisfaction and the Complainant had refused to collect the same before preferring the present complaint. In such a situation, we are of the view that the Complainant who had during the entire period of one year since its purchase, made repeated rounds of the service centre, to get the mobile hand set in question repaired, again and again, cannot be compelled to use the mobile handset as he has lost faith and does not want to use the same anymore. It is also important to mention here that as the mobile hand in question is no more covered under warranty, thus, in case of any problem arises, the Complainant would be compelled to pay for the repairs again and again. It is also established from the job cards on record that the handset in question has remained with the opposite parties for more than six months since its purchase. Hence, in such a situation, the demand of the Complainant to get the defective mobile handset replaced with a new one, is very much genuine and should have been addressed by the Opposite Parties, at the very first instance. 8. In the light of above observations, we are of the view that the Opposite Parties failed to pay any heed to the request of the Complainant to replace the defective mobile hand set with a new one, and the same amounts to deficiency in service. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed. The Opposite Parties are, jointly and severally, directed, to:- [a] To refund Rs.7900/- i.e. the invoice price of the mobile handset in question; [b] To pay Rs.3,500/- on account of deficiency in service and causing mental harassment to the Complainant; [c] To pay Rs.3,000/- as cost of litigation; 9. The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 8 above, apart from cost of litigation of Rs.3,000/-, from the date of institution of the present complaint i.e. 09.04.2012, till it is paid. 10. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 16th October, 2012 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (JASWINDER SINGH SIDHU) MEMBER ‘Dutt’
| | MR. JASWINDER SINGH SIDHU, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
