Delhi

North East

CC/50/2022

Master Sharad Kumar Dubey - Complainant(s)

Versus

Shri Balaji Communication - Opp.Party(s)

01 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

Complaint Case No. 50/22

 

 

 

In the matter of:

 

		Master Sharad Kumar Dubey Through his father Sh. Bimalesh Kumar Dubey R/o  B 307, St. No. 2, Ashok Nagar, Shahdara, Delhi-110093		Complainant
		Versus
	1.               2.       3.	Shri Balaji Communcation B 12, West Nathu Colony Chowk, Shahdara, Delhi-110093   Samsung India Electronics Pvt. Ltd. DLF Building, Sansad Marg, Janpath, Cannaught Place, New Delhi-110001   Bharat Communication A 245, Durgapuri Extn. 100 Futa Road, New Delhi-110093		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                           DATE OF ORDER:		03.03.22 15.12.23 01.04.24

 

CORAM:

Surinder Kumar Sharma, President

Adarsh Nain, Member

ORDER

Ms. Adarsh Nain, Member

The Complainant has filed the present complaint under Section 35 of the Consumer protection Act, 2019 against Opposite Party 1 i.e. seller/dealer of mobile phones, Opposite Party 2, the manufacturer, Opposite Party 3 the service center of Opposite Party 2.

Case of the Complainant                                                                 

1. The case of the Complainant as revealed from the record is that Complainant purchased from Opposite Party No. 1 which is Shri Balaji communication a new mobile phone Samsung A-21 bearing invoice no. SBC/20-21/6560 of Rs. 14,500/- including GST invoice dated 28.01.21 with warranty of one year on any manufacturing defect. At the time of purchasing, Opposite Party No. 1 told Complainant that the said product is free from all defects and has warranty of one year under which it will be repaired free of cost. The Complainant stated that from the very beginning, there were many problems in the said handset. The Complainant visited the service centre which is Opposite Party No. 3 where they changed the touch to open lock at back side and gave assurance that the problem has been resolved. It is stated that service centre official said to Complainant that the said mobile is second hand and has been sold to someone two months before invoice bearing no. 4322101673 dated 26.03.21 thereafter Complainant visited Opposite Party No. 1 to replace the said mobile but Opposite Party No. 1 refused to do so. The Complainant also requested to replace the said mobile as it is under warranty but Opposite Party refused to do so. The Complainant sent legal notice to Opposite Party No. 1 and Opposite Party No. 2 dated 21.12.21 and delivers to Opposite Party No. 1 and Opposite Party No. 2 on 23.12.21. The Opposite Party No. 2 had replied to the said notice but both the Opposite Parties failed to repair or replace the said mobile. The Complainant has prayed for the cost of the mobile phone in question of             Rs. 14,500/- with interest @ 18 % p.a. and Rs. 2,00,000/- for mental harassment. He has also prayed for Rs. 10,000/- towards legal expenses.
2. None has appeared on behalf of Opposite Party No. 1 and 3 to contest the case despite service of notice. Therefore, Opposite Party No. 1 and 3 were proceeded against ex-parte vide order dated 05.07.22.

Case of the Opposite Party No. 2

3. The Opposite Party No. 2 contested the case and filed written statement. Opposite Party No. 2 has objected to the complaint on the ground that the subject product was purchased by the Complainant from Opposite Party No. 1 which is not authorised dealer of Opposite Party No. 2, hence, Opposite Party No. 2 is not liable for the acts and omissions done by Opposite Party No. 1.  Opposite Party No. 2 also submits that the Complainant approached them for the first time on 26.03.2021 with an issue “fingerprint recognition not working” and after due inspection, their service engineer, replaced the required part finger print sensor as the product was carrying warranty of one year. At the same time, Opposite Party No. 2 came to know from their records that the said product was activated for the first time on 12.10.2020 instead of 28.01.2021. It is submitted that Opposite Party No. 2 duly resolved the issue and replaced the required part. Opposite Party No. 2 is still ready to resolve the issue, if any, under the terms and conditions of the warranty policy. Therefore, there has been no deficiency on the part of Opposite Party No. 2.

Rejoinder to the written statement of Opposite Party No.2

4. The Complainant filed rejoinder to the written statement of Opposite Party No.2 wherein the Complainant has denied the pleas raised by the Opposite Party No.2 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

5. The Complainant in support of his complaint filed affidavit of Sh. Bimlesh Kumar Dubey (Father of Complainant) wherein he has supported the averments made in the complaint.

Evidence of the Opposite Party No.2

6. In order to prove its case, Opposite Party No. 2 filed affidavit of Sh. Sandeep Sahajewani, AR of the Opposite Party No. 2 wherein the averments made in the written statement of Opposite Party No. 2 have been supported.

Arguments & Conclusion

7. We have heard the Ld. Counsels for the Complainant and Opposite Party No.2. We have also perused the file and the written arguments filed by the Complainant and Opposite Party No.2.
8. The case of the Complainant is that Complainant purchased the subject product from Opposite Party No. 1 on 28.01.21 with warranty of one year. At the time of purchase, Complainant was told that the said product is free from all defects and has warranty of one year under which it will be repaired free of cost. The Complainant faced many problems in the said handset from beginning. The Complainant visited the service centre which is Opposite Party No. 3 and they resolved the issue by replacing the required part. However, the Complainant was told that as per their records, the said mobile was second hand and has been sold to someone two months before invoice bearing no. 4322101673 dated 26.03.21. Thereafter Complainant visited Opposite Party No. 1 to replace the said mobile but Opposite Party No. 1 refused to do so. The Complainant also requested to replace the said mobile as it is under warranty but Opposite Party refused to do so. The Complainant has prayed for the cost of the mobile phone in question of Rs. 14,500/- with interest @ 18 % p.a. and compensation.
9. On the other hand, only Opposite Party No. 2 i.e. manufacturer contested the case and Opposite Party No. 1 i.e. the retailer and Opposite Party No. 3 i.e. the service centre of Opposite Party No. 1 were proceeded ex parte. Opposite Party No. 2 contended that the subject product was purchased by the Complainant from Opposite Party No. 1 which is not their authorised dealer of Opposite Party No. 2, hence, Opposite Party No. 2 is not liable for the acts and omissions done by Opposite Party No. 1.  At the same time they contended that they resolved the Complainant’s issue when they were approached and no deficiency has been on their part.
10. The perusal of the pleadings shows that the Complainant has relied upon purchase invoice of the subject product in his support. The said document shows that the said product was purchased on 28.01.2021. The Complainant also produces copy of job sheet prepared by Opposite Party No. 3, the authorised centre of manufacturer and as per that document; the date of purchase is on 12.10.2020.
11. The Complainant submits that service centre official him that the said mobile is second hand and has been sold to someone two months before. The authorised service center of Opposite Party No. 1 i.e. the manufacturer confirms this fact that the said hand set was already activated two months before the purchase by the Complainant.
12. The Complainant’s grievance is that he visited Opposite Party No. 1 to replace the said mobile but Opposite Party No. 1 refused to do so. It is also alleged by the Complainant that Opposite Party No. 1 is the representative of Opposite Party No. 2 while Opposite Party No. 2 has denied that specifically and asserts that Opposite Party No. 1 is not the authorised Samsung store of Opposite Party No. 2, hence, they are not liable for the acts or omission of Opposite Party No. 1.
13. In such case, the onus stands shifted on Opposite Party No. 1 to prove otherwise.  Since, the said onus has not been discharged as Opposite Party No. 1 having been proceeded ex-parte, the contention of Opposite Party No. 2 that Opposite Party No. 1 is not their authorised seller, is presumed as proved and Opposite Party No. 2 cannot be held liable for the acts and omissions done by Opposite Party No. 1. Moreover, Opposite Party No. 2 through its service centre resolved the issue of the Complainant as is admitted by the Complainant himself, hence, no deficiency can be attributed on the part of Opposite Party   No. 2.
14. It is evident from the above discussion that Opposite Party No. 1 had sold a hand set to the Complainant as new while the same had already been activated two months back. Since, Opposite Party No. 1 has failed to file its version in rebuttal, we are left with no option except to believe the version of the Complainant which is testified on oath.
15. In view of above discussion and the unrebutted and uncontroverted testimony of the Complainant regarding the deficiency of services on the part of Opposite Party No. 1, the retailer, we are of the considered view that the Opposite party No. 1 i.e. Shri Balaji Communication, the retailer, has been guilty of unfair trade practice and deficiency in services by selling a second hand product to the Complainant as new and then, failing to replace the same or make the refund of the cost of the mobile.
16. Thus, we allow the present complaint against Opposite Party No. 1 and direct the Opposite Party No. 1 i.e. Shri Balaji Communication, the retailer to pay to the Complainant the cost of the handset i.e. Rs. 14,500/- along with interest @ 9% per annum from the date of institution of the complaint till recovery. The Opposite Party No. 1 shall also pay an amount of Rs. 15,000 /- to the Complainant as compensation and litigation expenses along with interest @ 9 % p.a. from the date of this order till its recovery.
17. Order announced on 01.04.24.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

 

(Adarsh Nain)                 Member

(Surinder Kumar Sharma) President