Punjab

Moga

CC/15/48

Prince - Complainant(s)

Versus

Samsung India - Opp.Party(s)

Chander Kant Sahni

21 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

                                      C.C.  No. 48 of 2015

                                                                Instituted on: 21.07.2015

                                                  Decided on: 21.10.2015

 

Prince son of Iqbal Chand resident of Nanak Nagri, Near CIA Staff, Street No. 4, House No. 722, Moga, District Moga.

 

                                                                                        …. Complainant

                                      Versus

 

1. Samsung India Electronics Pvt. Ltd., B-1, Sector 81, Phase-2, Noida, District Gautam Budh Nagar, Uttar Pardesh through its Managing Director.

2. Avil Gupta, Prop. Singla Communications, Railway Road Marg, District Moga (Authorised Service Centre of Samsung Mobile).

3. Sahil Kansal Proprietor of M/s. Kansal Traders, Near Thakur Dwara, Gill Road, Moga, District Moga.

 

                                                                                    … Opposite Parties

 

Complaint u/S 12 of the Consumer Protection Act, 1986.

 

 

Coram: Sh. S.S.Panesar, President

              Smt. Vinod Bala, Member

             Smt. Bhupinder Kaur, Member

 

Present: Sh. Chanderkant Sahni, Adv., Counsel for the complainant.       

               Opposite parties No. 1 & 3 - Ex-parte. 

               Sh. Avin Gupta, Proprietor of OP No. 2.

 

ORDER

(Per S.S.Panesar, President)

             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against the opposite parties for directing them to replace the mobile handset in dispute with a new one of the same value/model and to pay Rs. 20,000/- as damages on account of mental agony and physical harassment suffered by him at the hands of the opposite parties and also to pay Rs. 5,000/- as litigation charges.

2.        Briefly stated, the facts of the case are that opposite party No. 1 is a Company, which manufactures mobile phones and it is selling mobile phones throughout India through its distributors and retailers. Opposite Party No. 2 is the authorized service centre of opposite party No. 1 and has opened service centers to provide after sale service to the customers by way of repairs of the mobile phones.  Opposite Party No. 2 is bound to give service free of cost to the customers, whose mobile phones are within warranty period on behalf of opposite party No. 1.  Opposite Party No. 3 is dealer who deals in mobile phones, accessories, connections etc. The complainant purchased one white colour Samsung Core 2 (355) mobile phone on 5.12.2014 from opposite party No. 3 by making a payment of Rs. 7,800/-.  The mobile phone was sold by opposite party No. 3 against bill No. 304 dated 5.12.2014 with a warranty period of one year from 5.12.2014 to 4.12.2015. Warranty casts a duty upon the opposite parties to provide free service to complainant for one year in the event of any damage/defect or any other problem with the mobile set in dispute. On 26.3.2015, display screen of the handset was damaged and the complainant approached opposite party No. 3 for getting the service, who referred the complainant to opposite party No. 2 for getting the repairs done. Thereafter, the complainant sent his mobile handset through his relative Hakumat Rai @ Happy to opposite party No. 2 and on 27.3.2015, OP No. 2 replaced the display screen of the mobile phone. The cost of the replacement of display screen was to the tune of Rs. 2,500/-.  On 6.7.2015, the handset of the complainant again stopped working and he sent his mobile handset through his relative Hakumat Rai @ Happy to OP No. 2,who received handset under complaint No. 4197256844.  On 7.7.2015, the complainant was shocked when he received open handset with  oral remarks from the employees of opposite party No. 2 that the handset is useless and Rs. 5,000/- will be charged as cost of repairing the same. The complainant requested opposite party No. 2 that the mobile handset is under warranty of one year which is valid upto 4.12.2015 and OP No. 2 is bound to repair the handset free of cost, but opposite party No. 2 refused to accede to  the genuine request of the complainant. Rather, opposite party No. 2 returned back the mobile handset to the complainant in open condition and some of the parts thereof were also in unassembled condition. The complainant has suffered a lot due to  non-providing of the proper service by the opposite parties. The mobile handset purchased by the complainant is not working and is liable to be replaced with a new one. Hence, this complaint.

3.         Upon notice, opposite party No. 2 appeared in person and also filed written reply by taking so many preliminary objections, that the complaint is not maintainable; that no deficiency in service has been attributed to the replying opposite party and from the allegations in the complaint no deficiency in service has been made out; that the complaint is false, frivolous, baseless, vague and malicious, therefore, in the event of dismissal of the complaint, opposite party No. 2 is entitled to special costs as provided under the Consumer Protection Act.

            In reply on merits, the facts narrated in the complaint are denied being false and frivolous.  The answering  opposite party has repaired the mobile handset of the complainant and charged Rs. 2,500/- and a bill to that effect was also issued in favour of the complainant.  It is pertinent to mention here that the complainant took the mobile handset to some private mechanic and this fault has occurred due to the negligent act of the complainant himself. There is no deficiency in service on the part of the reply opposite party and a prayer has been made for dismissal of the complaint with special costs.

4.       Opposite Party Nos. 1 & 3 were duly served through separate Registered Covers, but none appeared on their behalf and hence, they were  proceeded against ex-parte.

5.       In order to prove his case, the complainant namely Prince tendered in evidence his own affidavit - Ex. C-1 and documents i.e., copy of cash memo - Ex. C-2, copy of Invoice No. 381 - Ex. C-3, copy of Aadhaar card - Ex. C-4, copy of warranty card - Ex. C-5 and closed the evidence.

6.      In order to rebut the same, opposite party No. 2 tendered in evidence affidavit of Avin Gupta, proprietor - Ex. OP2/1 and closed the evidence.  

7.       We have heard the learned counsel for the complainant and Opposite Party No. 2 in person and have very carefully gone through the record of the file.

8.      Opposite Party No. 2 has vehemently contended that no deficiency in service has been attributed to him by the complainant and the complaint as framed is not maintainable. The alleged defect in the  mobile handset in dispute has occurred due to the fact that the complainant has taken the mobile handset in dispute to some private mechanic instead of approaching the authorised service center. Therefore, opposite party No. 2 cannot be blamed for the defect alleged in  the mobile handset.  As a matter of fact, the complainant should have approached the authorised service centre for getting his mobile handset repaired. It was not proper for him to approach some private mechanic for getting the alleged defect removed. Since there is no deficiency in service on the part of opposite party No. 2, therefore, complaint against OP No. 2 is liable to be dismissed with special costs.

9.       But, however, from the appreciation of evidence on record, it becomes evident that the complainant purchased mobile hand set in dispute vide Bill/Invoice, copies whereof are Ex. C-2 and Ex. C-3 respectively for an amount of Rs. 7,800/- from opposite party No. 3. It is also proved on record that the mobile hand set in dispute was within warranty cover with effect from 5.12.2014 uptil  4.12.2015.  It is also no disputed that when the display screen of the mobile hand set was damaged on 26.3.2015, it was taken by the complainant to OP No. 2 for repairs.  It is also not in dispute that opposite party No. 2 charged Rs. 2,500/- for replacing the display screen of the mobile hand set in dispute. However, OP No. 2 has not specifically denied that the complainant had approached it for the second time on 6.7.2015 for getting the mobile hand set in dispute repaired when it went out of order. Para No. 5 of the complaint is reproduced as under :-

"That on 06.07.2015, the handset of the complainant stopped       working and complainant sent his mobile handset through his relative Hakumat Rai @ Happy to opposite party No.2.  And opposite party No. 2 receive handset of complainant under complaint No. 4197256844."

10.     But, however, in reply to Para No. 5 the opposite party No. 2 has not specifically denied the allegations made therein.  Reply to para No. 5 is reproduced as under :

"That in reply to para no. 5 of the complaint it is pertinent to mention here that complainant has taken the said mobile to some private mechanic and this fault has been occurred due to the negligent act of the complainant himself. It  was told to the    complainant that it is the fault of complainant himself."

11.    From the perusal of the reply referred above,  it becomes evident that opposite party No. 2 impliedly admitted the case of the complainant because it did not deny the allegations made in para No. 5 of the complaint specifically. It is also proved that OP No. 2 demanded a sum of Rs.5,000/- from the complainant for repairing the mobile hand set in dispute, particularly when, the mobile hand set was within warranty cover and opposite party No. 2 could not have demanded the said amount from the complainant. The allegation that the mobile hand set in dispute was taken to some private mechanic for getting the same repaired by the complainant is not proved through any cogent evidence on record.  On the other hand, the evidence led by the complainant to that effect went un-rebutted on record and the act and conduct of opposite party No. 2 duly proves that there is deficiency in service on the part of opposite party No.2. Opposite Parties No. 1 and 3 are also deficient in service being the manufacturer and distributor respectively. However, the complainant is not entitled to the relief of refund of sale price or replacement of the old mobile handset with a new one because it is not a case of manufacturing defect in the device either in the complaint or in evidence on record.  

12.        From the facts and circumstances of the case, the complainant is entitled to get the mobile hand set in dispute repaired from the opposite parties. Consequently, the direction is given to the opposite parties to repair the mobile hand set in dispute to the satisfaction of the complainant and the complainant shall deposit the mobile hand set with opposite party No. 2 within a period of 15 days of the receipt of copy of this order.  Opposite parties shall get the same repaired free of cost to the satisfaction of the complainant within a further period of 15 days therefrom.  Copies of the order be supplied to the parties concerned free of cost.  File be consigned to the record room.

 

                   (Bhupinder Kaur)          (Vinod Bala)        (S.S. Panesar)

                     Member                        Member                President

 

Announced in Open Forum.

Dated:21.10.2015.

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