Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased a new mobile of Opposite Party No.1 against model ‘Samsung Galaxy J7 J700’ from Opposite Party No.3 vide invoice No. 15496 dated 21.03.2017 for Rs.11000/- with a warranty of one year from the date of sale. After purchase of the mobile set in question, the complainant faced very difficulties in operation said mobile set due to various types of defects arose in it. The complainant lodged various complaints with Opposite Party No.1 at their toll free number 1800-40-7267864 at 9779077709 and 8360624011 of Opposite Party No.2 service centre, but to no affect. Thereafter, again job was carried out by Opposite Party No.2 vide job sheet dated 12.08.2017 against various defects in the mobile set in question on the complaint such as touch problem, some time blinking, network problem and it was specifically remarked by Opposite Party No.2 that data lost handset sarchty. Thereafter, the complainant visited time and again with Opposite Party No.2, but to no affect. Said mobile set is carrying various internal/ inbuilt/ inherent defects and the Opposite Parties are careless to provide their services after sale as such, the Opposite Parties are responsible for the same. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to replace the defective mobile set with new one against extended warranty or refund the amount of Rs.11000/- alongwith interest @ 18% per annum and also to pay of Rs.25,000/- on account of compensation due to mental tension and harassment caused by the complainant as well as costs of litigation amounting to Rs.3300/-.
3. Opposite Party No.1-Samsung India appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. There is breach of warranty terms and conditions as the handset has been mishandled by the complainant leading to liquid logging i.e. liquid has made ingress in the handset due to which display of the handset has been damaged and liquid logging is a warranty void condition and repair if any has to be done n chargeable basis only. The mobile set in question has been physically mishandled by the complainant as the handset was found liquid logged on internal inspection of the handset by the service engineer of Opposite Party No.2 on 12.08.2017. The job sheet which was issued by Opposite Party No.2 in its clause 5 clearly mentions that the product has been accepted for service subject to internal verification, if product is found to be tampered, 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 repair. In nutshell, Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. Hence, there is no deficiency in service on the part of the Opposite Party No.1 and the complaint may be dismissed with costs.
4. On the other hand, none has come present on behalf of Opposite Party No.2-Kiran Mobile and Opposite Party No.3-Gupta Music Café and hence, they were proceeded against exparte.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C3 and closed the evidence on behalf of the complainant.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence the affidavit of Sh.Anup Kumar Mathur Ex.RA, affidavit of Sh.Davinder Singh Ex.RB alongwith copies of documents Ex.R1 to Ex.R3 and closed the evidence.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Party No.1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party No.1. Further contended that the complainant purchased a new mobile of Opposite Party No.1 against model ‘Samsung Galaxy J7 J700’ from Opposite Party No.3 vide invoice No. 15496 dated 21.03.2017 for Rs.11000/- with a warranty of one year from the date of sale. After purchase of the mobile set in question, the complainant faced very difficulties in operation said mobile set due to various types of defects arose in it. The complainant lodged various complaints with Opposite Party No.1 at their toll free number 1800-40-7267864 at 9779077709 and 8360624011 of Opposite Party No.2 service centre, but to no affect. Thereafter, again job was carried out by Opposite Party No.2 vide job sheet dated 12.08.2017 against various defects in the mobile set in question on the complaint such as touch problem, some time blinking, network problem and it was specifically remarked by Opposite Party No.2 that data lost handset sarchty. Thereafter, the complainant visited time and again with Opposite Party No.2, but to no affect. Said mobile set is carrying various internal/ inbuilt/ inherent defects and the Opposite Parties are careless to provide their services after sale as such, the Opposite Parties are responsible for the same.
9. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. Further contended that there is breach of warranty terms and conditions as the handset has been mishandled by the complainant leading to liquid logging i.e. liquid has made ingress in the handset due to which display of the handset has been damaged and liquid logging is a warranty void condition and repair if any has to be done n chargeable basis only. The mobile set in question has been physically mishandled by the complainant as the handset was found liquid logged on internal inspection of the handset by the service engineer of Opposite Party No.2 on 12.08.2017. The job sheet which was issued by Opposite Party No.2 in its clause 5 clearly mentions that the product has been accepted for service subject to internal verification, if product is found to be tampered, 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 repair and as such, there is no deficiency in service on the part of the Opposite Party.
10. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No.1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.1 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for Opposite Party No.1. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
11. For the sake of arguments, for the time being, if the written reply filed by Opposite Party No.1 is presumed to be correct, the merits of the case are that it is not disputed that the complainant purchased the mobile set in question from Opposite Party No.3-Gupta Music Café for Rs.11,000/-, copy of the bill is placed on record as Ex.C2, and at that time, the seller of the product gave warranty of 12 months against said product, copy Ex.C3 on the record. The main defence of the Opposite Party No.1 is that handset has been mishandled by the complainant leading to liquid logging i.e. liquid has made ingress in the handset due to which display of the handset has been damaged and liquid logging is a warranty void condition and repair if any has to be done n chargeable basis only, but perusal of the job sheet given by the service centre dated 12.08.2017 in the column of Defect Description Accessory it is clearly mentioned as “Touch Somtym Blinking” and there is no such mention that handset has been mishandled by the complainant leading to liquid logging. On the other hand, to defend its case, the Opposite Party No.1 has placed on record some acknowledgement of service Ex.R1 of dated 03.07.2018 by mentioning in Defect Description as “LCD damage’ and hence, we are of the view that the Opposite Party No.1 to prove its case as genuine, is blowing hot and cold in same breath, with which we do not agree.
12. Ld.counsel for the complainant has strenuously contended that said mobile set is carrying various internal/ inbuilt/ inherent defects and the Opposite Parties are careless to provide their services after sale as such, the Opposite Parties are responsible for the same. On the other hand, Opposite Party No.1 has failed to give satisfactory reply regarding non manufacturing defect in the Mobile Set in question through any cogent and convincing evidence. The case of the complainant is that the Mobile Set in question is having manufacturing defect and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
In the instant case, the mobile set in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also proved on record the copies of documents Ex.C2 to Ex.C3. The evidence produced on record by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.
13. In the instant case, it is not disputed that the mobile set in dispute started giving problem within warranty period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.
In the instant case, the mobile set in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
14. So, from the entire unrebutted evidence produced by the complainant on record, it stands fully proved on record that the mobile set of the complainant was suffering from inherent defects, which did not admit repair/ rectification. As argued above by the ld.counsel for the complainant that the complainant has no faith in such Opposite Party company because since the date of purchase of the mobile set in question, the complainant has been harassed badly all the time without any reasonable cause and he does not want to keep the product of this company and made prayer that the amount of the product may please be refunded alongwith interest and compensation. In his prayer, the complainant has prayed before this District Consumer Commission to refund the price of the Mobile Set in question i.e. Rs.11,000/- alongwith interest @ 18% per annum from the date of payment till its realization and also to pay Rs.25,000/- as compensation for causing him mental tension and harassment besides Rs.3300/- as costs of litigation. But however, the claim for compensation to the tune of Rs.25,000/- is concerned, the same appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded compensation to the tune of Rs.5,000/- and we award the same accordingly.
15. In views of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant and direct all the Opposite Parties jointly and severally to refund the price of the mobile set in question i.e. Rs.11,000/- to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 05.09.2017 till its actual realization. All the Opposite Parties are also directed jointly or severally to pay compensation to the complainant for causing him mental tension and harassment to the tune of Rs.5,000/- (five thousands only). The compliance of this order be made by Opposite Parties jointly or severally within 45 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:25.03.2022.
