Jammu and Kashmir

Jammu

CC/294/2018

MOHD. HAFIZ - Complainant(s)

Versus

SAMSUNG - Opp.Party(s)

Himanshu Beotra

21 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File No.             :   128/DFJ                

 Date of  Institution   : 23-07-2018                   

 Date of Decision       :  14-11-2018

 

Mohd.Hafeez,

S/O Saraf Din,

R/O Channi Rama Near Armed Police Line,

Jammu (J&K).

                                                                                                                                                Complainant

                 V/S

1.Samsung India  Electronics Pvt.Ltd.

    20^th to 24^th Floor, Two Horizon Centre

Golf Course Road, Sector 43 DLF PH-V,

         Gurgaon,Haryana-122202. Through its Director,

  2.  R.S.Sales Shop No.5-6,JDA Shopping Complex,

        New Plot,Jammu through its proprietor/Owner.

  3.   A.R. Electronics, F 696,First Floor,

        K.K.Complex,Jammu through its Authorised Signatory.

  

                                                                                                                                          Opposite parties

CORAM:-

                  Khalil Choudhary             (Distt.& Sessions Judge) -  President

                  Ms.Vijay Angral                                                             - Member

                  Mr.Ghulam Sarwar Chauhan                                     - Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

  

Mr.Himanshu Beotra,Advocate for complainant, present.

Mr.Arvind Khajuria,Advocate for Ops,1&3,present.

Nemo for OP2.

                                                       

                                                                  ORDER

 

                         Facts relevant for the disposal of complaint on hand are that complainant is said to have purchased a  Samsung mobile phone having Model No.SM-G950FZKDINS,GSM,bearing IMEI No.358057080599366,on,09-06-2017,against sale consideration of Rs.57,900/-against proper receipt with a warranty of one year from OP2(copy of bill is annexed as Annexure-A)According to complainant, he had very high expectations regarding the durability and performance from the phone, but within one month of purchase, the handset had some technical slangs, being the handset under warranty period, complainant took the handset to the official service centre of OP1 in Jammu i.e.OP3,namely,A.R.Electronics and informed the said problem to the person concerned in the service centre, who took the handset for observation, but instead of redressing his grievance,OP3 declared the phone to be in proper working condition and handed over to him back. Allegation of complainant is that relying on the observations made by the service centre,he considered the phone to be fit and thought that it might be the problem of sim card, but again after few days, the same problem persisted,complaiant took the handset to service centre on,28-10-2017 ,this time again service centre checked the phone and told him that it was having software problem and also told him that the problem has been removed. That despite assurance by the service centre, the phone never worked properly and he again took it to service centre on,14-10-2018,this time again they told him that it had developed software problem and returned the handset to the complainant with a assurance that the problem had been removed. That after few months, the phone developed major problems, as this time it was hanging continuously and was also heating up regularly  and its display was also getting blank intermittently, so this time again complainant took it to the service centre on,02-06-2018 and apprised them about the problems and this time again assured him that the phone is having software problem and OP3 after rectifying it handed over the handset to him. Further allegation of complainant is that he has been cheated by the Ops firstly by selling defective handset and thereafter causing harassment and had made to suffer from pillar to post for getting his handset repaired from the service centre. Complainant also submits that neither defects have been removed by Ops, nor redressed his grievance, which according to complainant constitutes deficiency in service,therefore,prays for refund of cost of handset to the tune of Rs.57,900/-alongwith interest @ 18% per annum and in addition, also prays for compensation of Rs.50,000/-including litigation charges.

                  On the other hand,Ops 1&3 have filed written version and while denying the allegations of complainant, went on to submit that as per record complainant unit in question was out of warranty and they approached service centre only once after the expiry of warranty vide dated 02-07-2018 and has reported problem i.e. No Network issues,accordingly mobile unit of complainant was immediately handed over to the service engineer of service centre without any delay and asked the customer to wait for some time and deposit the handset with the service centre to examine the handset, but the customer is adamant and asked immediate repair. Thereafter the employee of service centre requested the complainant to wait for repair but the complainant was adamant and the same call was cancelled & for the reason best know to complainant and took the delivery of the handset and till date the customer is using the same mobile. It is further submitted that complainant again approached OP3 i.e. service centre only once after the expiry of warranty vide dated 13-07-2018 and has reported problem I.e.Dead intermittent Power Issues,accordingly thehandset of the complainant  was immediately handedover to the service engineer of the service centre without any delay and again asked the customer to wait for time and deposit the handset with the service centre to examine the handset but the customer was adamant immediate replacement/refund, thereafter the employee of service centre requested the complainant to wait for repair as per the warranty terms and conditions issued by OP1, but the customer was adamant immediate replacement/refund only and the same call was cancelled. However, such kind of minor technical problems generally occur due to mishandling of the unit, as such, the OPs have not committed any negligence or deficiency in service. The Ops 1 &3further submitted that they are still ready and willing to carry out any repairs as per warranty terms and conditions, in case any defect is found in the same.However,the onus is on the complainant to prove that there is any defect in the mobile unit. It is further submitted that there is no manufacturing defect in the mobile unit and neither there is any deficiency in service on the part of OP,therefore,complaint is misconceived and liable to the dismissed.

                      Complainant adduced evidence by way of duly sworn his own affidavit and affidavit of Irfan Hussain. Complainant has placed on record, copy of tax invoice and copy of job sheet.

            On the other hand,Ops 1&3 adduced evidence by way of duly sworn evidence affidavit Rahul Bamba Mobile Service Engineer, Jammu.

  We have perused case file and heard L/Cs for the parties at length.

                  To be brief, grievance of complainant is that he purchased Samsung mobile phone having Model No.SM-G950FZKDINS,GSM,bearing IMEI No.358057080599366,on,09-06-2017,against sale consideration of Rs.57,900/-against proper receipt with a warranty of one year from OP2,but ,within warranty period, same was marred by defects. Further allegation of complainant is that despite he approached OP3(i.e.authorised service centre),but OP3 failed to rectify the defects, which were manufacturing defects in nature.

                    On the other hand, OP1&3,while denying the allegations of complainant in toto,went onto submit that the complainant has not produced any expert opinion and the unit in question is out of warranty  to prove that the device had manufacturing defect in it, hence OP1&3 are not liable for any refund/replacement and compensation. Further stand of OP1 &3 is that complainant has not produced any evidence/service report to show that he had approached OP3 an authorized service provider of OP1 after several times as per their complaint.That the OP1&3 had given service to the complainant whenever complainant had visited OP3 an authorized service provider of OP1 and so there is no deficiency in service on the part of OP3.

                      After hearing L/Cs for parties and perusing the case file, the point for consideration is, as to whether or not Ops are deficient in service in not redressing the grievance of complainant.

                      Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

           After considering the pleadings and evidence of the parties, the main thrust of the OP1&3 is that no expert evidence was produced or any opinion was obtained from the expert.Further stand of OP1&3 is that the unit in question is out of warranty but in our opinion no expert evidence was necessary to establish that there was some manufacturing defect in the handset, which were beyond rectification as evidenced by the repeated failure of OPs to control hanging of the unit in question continuously and heating up regularly i.e.beyond the control of the complainant and the display was also getting blank intermittently and the record of the service centre also annexed by the complainant which shows that regular problem is intermittent power. The problems mentioned in the complaint was not borne out on the job card annexed with the file. It is also evident from the complaint that complainant visited authorized service centre of Ops number of times within warranty period from the date of purchase of handset and the handset in question did not function smoothly ,but ultimately job card dated 13-07-2018 clearly shows that deficiency on the part of the Ops,while unit of the complainant carrying intermittent power problem because it could not be at all used.

                 From perusal of averments contained in the complaint, it is manifestly clear that within a short span of its purchase, the handset started giving trouble,whereas,despite repeated visits  to Ops authroised service centre, the handset could not be made  workable,therefore,in our opinion once high-end hand set purchased by complainant,obviously,without any rhyme or reason, question of grouse, regarding fault of handset would not have arisen, instead of making use of it. Rather we think Ops should have redressed grievance of complainant, who spent such huge money and banked upon such multinational brand, but it seems that instead of well coming the consumer,Ops have chosen to multiply  suffering, which of course is unwarranted and unexpected from such brand. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by Ops.

                    Before proceeding further, it is important to reproduce Section 11(1)©of J&K Consumer Protection Act:

             © Where the complaint alleges a defect in the goods, which cannot be determined without proper analysis or test of the goods, the {District Forum}shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such ;laboratory make an analysis or test, whichever may be necessary, with  a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forumwithin a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum

                   From this, it is clear that reference to an appropriate laboratory(or, expert)for determination of defects in goods is not entirely mandatory. In this case, based on the admitted evidence that the complainant was required to take his newly purchased handset to the authorized service centre of OPs repeatedly particular many times.

             L/C for OP1&3 submitted that there is no expert opinion that there is a manufacturing defect in the handset. In our view no expert opinion is required in the circumstances of the case as noted above. The handset in question did not function smoothly to the satisfaction of complainant after a short span of its purchase, it was taken to the workshop of OPs.The handset had to be taken to the service centre of OPs number of times with one problem or the others which continued persisting impels us to the interference that there is some manufacturing defect which is beyond rectification.

                After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumers as per the purport of Section 2(d) of Consumer Protection Act and OP is the service provider having failed in its statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumers. The consumers have to come forth and seek for redressal of their grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                In this view of the matter, we are of the opinion that failure of Ops 1&3 to redress the grievance of complainant amounts to deficiency in service on their part,therefore,it would meet the ends of justice, in case complainant would be repaid cost of handset, but on scanning the case file, it came to fore that handset was purchased by the complainant, on 09-06-2017,whereas,complainant for the first time approached OP3, with the complaint, on,28-10-2017, 02-06-2018 and 09-06-2018. It is a matter of common knowledge that electronic items, particularly electronic gadgets like in hand, after some time are sold on reduced price. Likewise, complainant used handset for four months, definitely its present value can by no stretch of imagination, still would be Rs.57,900/-therefore, we decided the complaint for consolidated sum of Rs.51,900/-inclusive  all heads.

                       In the afore quoted back drop, complaint is allowed and Ops 1&3 are directed to refund consolidated  sum of  Rs.51,900/-to complainant, who shall return the defective handset alongwith accessories to Ops 1&3.The Ops 1&3 shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

    Order per President                                              Khalil Choudhary

Announced                                                        (Distt.& Sessions Judge)

14-11-2018                                                               President

                                                                            District Consumer Forum

Agreed by                                                                 Jammu.

                                                                                 

Ms.Vijay Angral          

Member

                                                                                              

       Mr.Ghulam Sarwar Chauhan

       Member