Punjab

Fatehgarh Sahib

CC/106/2015

Vijay Kumar - Complainant(s)

Versus

Savex Computers Ltd. - Opp.Party(s)

Sh. M.K.Garg

28 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                         Consumer Complaint No.106 of 2015

                                                                Date of institution: 01.12.2015                                      

                                                               Date of decision   :  28.10.2016

Vijay Kumar aged about 32 years son of Hari Chand r/o Ward No.13, Mohalla Dhobian, Bassi Pathana, Tehsil Bassi Pathana, District Fatehgarh Sahib, now residing at House No.5889, Modern Housing Complex, Mani Majra, City Chandigarh, 160101.

……..Complainant

Versus

1. Savex Computers Ltd; Plot No.14, C-Scheme Yudhishtar Marg, Near Deer Park, Jaipur(Rajasthan), through its Proprietor/Partner.
2. Snapdeal.com No.246, Okhla Industrial Estate, Phase-III, New Delhi-110020 through its proprietor/partner.
3. Samsung Care Centre, c/o Techno Solutions, Ward No.17, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib through its Authorized Signatory.
4. Samsung India Electronics Pvt. Ltd., A 25, Ground Floor, Front Tower, Mohan Cooperative, Industrial Estate, New Delhi 110044, through its authorized signatory.

 

 …..Opposite parties

     

Complaint under Sections 12 of the Consumer Protection Act 1986

Quorum

 

Smt. Veena Chahal, Member           

Sh. Amar Bhushan Aggarwal, Member

         

Present :      Sh. M.K. Garg, Adv.Cl. for the complainant.

                   Sh. Rajneesh Verma, Adv.Cl. for OP No.1.

                   Sh. M.S.Bains, Adv.Cl. for OP No.2.

                   OP No.3 exparte.

                   Sh.G.S.Nagra, Adv.Cl. for OP No.4.

 

 

ORDER

By Amar Bhushan Aggarwal, Member

                Complainant, Vijay Kumar aged about 32 years son of Hari Chand r/o Ward No.13, Mohalla Dhobian, Bassi Pathana, Tehsil Bassi Pathana, District Fatehgarh Sahib, now residing at House No.5889, Modern Housing Complex, Mani Majra, City Chandigarh, 160101, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 11 to 14 of the Consumer Protection Act 1986. The brief facts of the complaint are as under:

2.              The complainant purchased a mobile hand set Samsung Galaxy Grand Max, bearing IMEI No.358827060380007, online from OP No.1 through OP No.2 on 13.04.2015, vide bill No. JPSN 1516105274, for a sum of Rs.14,990/-. At the time of purchase of the said mobile hand set OPs No.1 and 2 gave warrantee/guarantee of one year for any defect in the mobile hand set and also assured that on any defect in the mobile hand set they will return the amount of the said hand set along with interest or like amount or to replace the same with new one of the same price range. After some time from the date of purchase of the said mobile hand set, a fault occurred as the same started to hang while the complainant tried to accept the incoming call. The mobile hand set also heated up while using the same. Thereafter on 26.11.2015 the complainant visited the shop of OP No.3 i.e. the authorized service center of the Samsung Company i.e. OP No.4, and told about the said problems. OP No.3 retained the mobile hand set with it and issued a service job sheet to the complainant and asked the complainant to receive the mobile hand set on next day i.e. 27.11.2015. On 27.11.2015, when the complainant visited the shop of OP No.3, it returned the mobile hand set to the complainant with assurance that the defects have been removed and now it will not create any problem in future, but when the complainant used the mobile hand set, even at the shop of OP No.3, he found that the problem has not been removed. The complainant gave remarks on the job sheet that " I received the set but not satisfied". The complainant requested OP No.3 to remove the defects or refund the amount, but it clearly stated that there is a manufacturing defect in the same and asked the complainant to approach OP No.4 and totally refused to refund the amount of mobile hand set or replace the same with new one. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice on their part. Hence, this complaint for giving directions to the OPs to refund the price of mobile hand set i.e. Rs.14,990/- and further to pay Rs.25,000/- as compensation for harassment and mental agony and Rs.5500/- as litigation expenses.

3.             Notice of the complaint was given to the OPs but OP No.3 chose not to appear to contest this complaint despite service as per tracking report of postal department. Therefore, OP No.3 was proceeded against exparte. The complaint is contested by OPs No.1,2 and 4.

4.             In reply to the complaint OP No.1 stated that the complainant is not entitled to recover the alleged amount from OP No.1. The complainant has no cause of action to file the present complaint. After denying the other averments made in the complaint it prayed for dismissal of the complaint qua it.

5.             In reply to the complaint OP No.2 raised certain legal objection, inter alia, that the present complaint is bad in law for misjoinder of parties; the present complaint is not maintainable under Section 79 & 2(W) of the I.T.Act 2000;  the complainant has got no cause of action to file the present complaint and the complainant is not a consumer as defined under the Consumer Protection Act, 1986. As regards the fact of the complaint, OP No.2 stated that the terms and conditions of the website clearly mentioned that the warrantee/ guarantee of the product is either given by the seller or manufacturer and it has no liability. OP No.2 further stated that it is only an intermediary between the seller and the buyer. It provides a platform for the seller and the buyer for the sale and purchase of any product.  The products shown on the website are sold by their seller, if there is any guarantee/warrantee or any other assurance provided in respect of the product, it relates only to the seller. It gives assurance regarding tracking and delivery of the product only. After denying the other averments made in the complaint, it prayed for dismissal of the complaint qua it.

6.             In reply to the complaint OP No.4 raised certain preliminary objections, inter alia, that the complaint is not entitled for any relief as he has concealed the material and true facts from this Forum; the present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations and no cause of action has arisen in favour of the complainant. As regards to the facts of the complaint OP No.4 stated that the complainant has only once visited the service center on 26.11.2015 with problem of 'Hang & Heat Up on using Internet', which was duly rectified by the service center without any charges and to the satisfaction of the complainant. Thereafter the complainant has never visited any service center of the company, which shows that the mobile hand set is working perfectly.  There is no deficiency in service on its part. After denying the other averments made in the complaint, it prayed for dismissal of the complaint.

7.             In order to prove his case the complainant tendered in evidence his affidavit Ex. C-1, copy of bill Ex. C-2, copy of job sheet Ex. C-3, copy of online warranty information Ex. C-4, photographs Ex. C-5 and Ex. C-6 and closed the evidence. In rebuttal OP No.1 tendered in evidence affidavit of Karan Kumar, Branch Accountant Ex.OP1/1 and closed the evidence. OP No.2 tendered affidavit of Shine Joy as Ex. OP2/1, attested copy of terms of sale Ex. OP2/2, attested copy of term of use Ex. OP2/3 and closed the evidence and OP No.4 tendered in evidence affidavit of Sh. Anindya Bose Ex. OP4/1.

8.             The Ld. counsel for the complainant argued that the complainant had purchased the mobile hand set for Rs.14,990/- online vide bill No.JPSN1516105274 dated 13.04.2015 from OP No.1. After some time fault occurred of hanging and heating up. There was frequent problem.  OP No.3 once repaired the set, but the fault was not rectified. The complainant gave remarks on the job sheet "I received the set but not satisfied". Inspite of repeated visits to OP No.3,  neither the set was replaced/exchanged nor defect was removed. As a result, the complainant has not been able to use the mobile hand set since then. OP No.4 also refused to refund the amount of mobile hand set. The OPs have thus committed deficiency in service and caused mental & physical harassment to the complainant, despite knowing the facts that the mobile hand set was found to be defective. The Ld. counsel thus pleaded for the acceptance of his complaint with heavy costs.

9.             The Ld. counsel for OP No.1 submitted that OP No.1 is not responsible for repair/warrantee, which is provided by the service centre of manufacturer.  The Ld. counsel thus pleaded for dismissal of complaint qua him.

10.                    The Ld. counsel for OP No.2 argued that complaint is not maintainable as per Information Technology Act 2000. OP No.2 is neither a necessary nor proper party.  That he was simply a owner of the website.  The complainant is not a consumer vis-a vis OP No.2 and thus pleaded for dismissal of the same qua him.

11.                    OP No.3 was proceeded against ex-party as despite the proper and effective service, it did not join the proceedings at any stage. This in itself is admission of the complaint on his part.

12.                    The Ld. counsel for OP No.4 argued that the complainant only once visited the service centre. The problem in the mobile set was duly rectified to the satisfaction of the complainant. The refund or replacement of mobile hand set is not permissible under the terms and condition of warranty. There is no manufacturing defect in the mobile set and there is no deficiency in service on the part of OP No.4. The Ld. counsel pleaded for dismissal of complaint with cost.

13.                    After hearing the Ld. counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments, we find that there is force in the submissions of the Ld. counsel for the complainant. OP No.3 has time and again failed to repair/rectify the problem in the said mobile hand set despite it being in the warranty period.

14.                    In view of the above discussion we accept the present complaint and find that OP No.3 & 4 have committed deficiency in service by not repairing or replacing the said mobile hand set. The complaint is dismissed qua OP No.1 & 2. Hence, we direct OPs No.3 & 4 as follows:

i)      Replace the mobile hand set with a new mobile hand set of the same value or refund the amount of Rs.14,990/- within a period of 45 days from the date of receipt of copy of this order. If the orders are not complied within the stipulated period, it will carry interest @ 9% p.a. till its realization.

ii)     Complainant is also held entitled to the damages suffered by him on account of harassment, mental tension and deficiency in service to the tune of Rs.2500/- including cost of litigation.

15.                    The damages and litigation cost be paid within a period of 45 days from the date of receipt of copy  of this order.

16.                    Copy of the order be sent to the parties free of costs and thereafter the file be consigned to the record room.

Pronounced

Dated: 28.10.2016

                                                                                (Veena Chahal)

Member

 

(A.B.Aggarwal)

Member