Delhi

North East

CC/311/2017

Mr. Jitendra Kumar Sharma - Complainant(s)

Versus

Samsung Service Center - Opp.Party(s)

30 Jan 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  311/17

 

In the matter of:

 

	Shri Jitendra Kumar Sharma S/o Shri Murari Lal Sharma R/o- F-28 Street no. 1, West Karawal Nagar, Delhi-110094	Complainant
	Versus
1.         2.           3.	Bharat Communication Samsung Service Center A-245, Durgapuri Extn. 100 Futa Road New Delhi-110093   Samsung India Electronics Pvt. Ltd. Ground & First Floor Vipul Tech Square, Tower-C, Sector-43, Golf Course Road, Gurgaon, Haryana-122202   Spice Hotspot Spice Retail Ltd. 183, Khata Khatoni No. 321/268 Village Karawal Nagar, Delhi-110094	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

25.10.2017 30.01.2020 30.01.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Shorn of unnecessary details, the present complaint pertains to the fact that the complainant had purchased a Samsung Galaxy A510F bearing IMEI 358005071700410 mobile phone manufactured by OP2 from OP3 (arraigned by complainant on objection taken by OP1 & OP2 in written statement) on 17.07.2016 for a sum of  Rs. 21,900/- vide invoice no. 149415760. However, the said handset battery started given problem after eight months of purchase for which the complainant visited OP1, Authorized Service Centre (ASC) of OP2 on 25.03.2017 and was asked to deposit the phone at the said ASC and issued a service request no. 4233158546 but mobile was shown as out of warranty to which complainant expressed his opposition saying that battery swelling was not his fault but OP1 did not entertain his plea and therefore complainant took back his phone from OP1. A month later, he received a call from OP1 asking him to submit his handset for check up and complainant sent his brother to OP1 with all relevant documents who then submitted the handset on 26.04.2017 with OP1 and was issued job sheet no. 4235303778 with defect description dead and battery swell and back chrome damaged with warranty status shown again out of warranty. The complainant has not been returned the handset which is lying with OP1 since April 2017. The complainant therefore feeling aggrieved at deficiency of service on the part of OPs for marking his handset as dead, file the present complaint praying for issuance  of direction against OP2 to refund the cost of handset i.e. Rs. 21,900/- alongwith compensation of Rs. 25,000/- for mental torture and agony and Rs. 10,000/- for cost of litigation.
2. Complainant has attached copy of purchase invoice with cost of mobile shown as Rs. 21,900/- and copy of job sheets dated 25.03.2017 & 26.04.2017.
3. Notice was issued to the OPs on 06.11.2017. None appeared on behalf of OP3 despite service effected on 16.03.2018 and therefore proceeded against ex-parte vide order dated 30.08.2018. OP1 & OP2 entered appearance and filed composite written statement vide which it took the preliminary objection of complainant not having arraigned the seller Spice Hotspot despite it being a necessary party to establish the authenticity of the purchase the handset in question and denied any deficiency of service on its part in view of complainant having failed to prove the same by way of documentary evidence. While admitting the factum of purchase of the subject handset by complainant, OPs submitted that out of the price amount of Rs. 21,900/-, Rs. 2,417.46/- was the tax amount thereon. OPs took the defence that the subject handset carried a warranty of one year subject the terms and conditions in view of which repair or replacement was expressly excluded but only of any part which needed replacement or repair for any reason of defective workmanship or defective component. OPs resisted the complaint per contra to complainant submissions that after having used the subject handset for more than nine months, complainant sent one Puran Sharma to OP1 on 25.03.2017 with complaint of battery swelling for the first time and after the handset assess by the technician of OP1, he arrived at the conclusion of mishandling of the handset leading to damage to its back glass and therefore the battery swelling problem was out of warranty in terms of its repairs. For this reason, the complainant took back the handset on hearing the estimate cost of the repairs. Further, when this Puran Sharma visited OP1 after a month on behalf of complainant he was again informed that the repair of the handset would be on chargeable basis at its warranty has been rendered void. OPs submitted that they had addressed the issue and were ready to provide services to the complainant as per warranty policy and therefore were not deficient. OPs urged that complainant has failed to prove any manufacturing defect in the handset and therefore is not entitled any relief claim in the present complaint as they are beyond terms and conditions of the warranty as well as ambit of Section 14(1) of CPA. It relied on judgment of Hon'ble Supreme Court on warranty issue and parties being bound by contract also highlighted the relevant clauses of the warranty terms and conditions attached with the written statement vide which defects arising out of the following were not covered under warranty: mishandling / misuse or improper ventilation or improver voltage or use of external material or physical damage and / or electric damage caused by physical impact. It urged that the handset found dead on arrival on 26.04.2017 for which the complainant was informed about repair on chargeable basis but he rejected repair on payment. OPs submitted that Puran Sharma was informed to be complainant’s brother who had contacted OP1 on 25.03.2017 and 26.04.2017 and who was well aware of the working of OPs and therefore it is incorrect to submit that OPs had violated the consumer rights of the complainant or that his brother was unaware of rule or regulation. Therefore, on defence so taken, OP1 & OP2 prayed for dismissal of the complaint.
4. OPs have attached copy warranty card booklet accompany the subject handset.
5. Rejoinder in rebuttal to the defence taken by the OPs was filed by the complainant urging that the subject phone despite being under warranty was proposed by OPs to be repair on heavy charges which was against the policy and prayed for relief claim since battery swelling is hazardous to life.
6. Both parties filed respective evidence by way affidavit exhibiting the documents relied upon.
7. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance / defence. Complainant filed copies of photographs of the cracked back chrome of the handset and damage front profile.
8. We have heard the rival contentions of both parties and have given a thoughtful consideration to the documents placed on record the purchase of mobile in July 2017 and its first reported problem of battery swelling in March 2018 i.e. after eight month of usage is admitted by both parties. The dispute pertains to the mobile having been rendered out of warranty by OP1 & OP2 when the same was brought for repairs for which the OPs ask the complainant to pay for the repairs which the complainant opposed and filed the present complaint. Undoubtedly and as has been widely reported too, battery swelling is a serious hazard and can lead to life threatening accident / mishap and in the present case of the handset in question the battery was un-detachable / inbuilt and therefore the warranty period for the same (six months from date of purchase) is clearly not applicable to render the handset out of warranty as was done by OPs which asked for payment to repair the same. Further, the allegation leveled by OPs of mishandling of the handset by complainant leading to damage to back glass and battery swell do not find any mention in either of the job cards of March or April 2018 under the head of defect description or remarks by OPs technician. Therefore, the same are bald allegation uncorroborated by documentary evidence. We therefore opine that the OPs have failed to fulfill their duty / obligation of discharge of service towards the complainant and are guilty of deficiency of service. The Hon'ble National Commission in the recent judgment of Samsung India Eletronic Pvt. Ltd. and Anr Vs Farooq Khan and Anr IV (2019) CPJ 608 (NC) observed that when a person purchases a mobile handset he expects efficient working of the handset. Therefore if the complainant has filed any complaint with OPs for non-functioning of mobile set OPs were duty bound to rectify the defect of mobile under warranty.  However, the fact cannot be ignored that the handset was used by the complainant without any complaint for eight months. In the case in hand, the complainant had used the mobile without any complaint for eight months. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund and thereby set aside order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP.
9. Therefore, relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of mobile phone and direct OP1 and OP2 jointly and severally to refund the cost of the mobile handset after depreciation to the tune of Rs. 15,000/-. We further direct the OP1 & OP2 to pay a compensation of Rs. 3,000/- to the complainant towards mental harassment inclusive of litigation charges. Let the order be complied by OP1 & OP2 within 30 days from the date of receipt of copy of this order. No order against OP3 since the handset sold by it functioned for eight months since purchase and the deficiency lies only against the manufacturer and its service center for refusing to repair the battery swelling issue in the phone free of cost within warranty period and the handset per se did not suffer any manufacturing defect else it would not have worked problem free for continuous eight months.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  30.01.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member