Punjab

Faridkot

CC/16/328

Sidharth Jain - Complainant(s)

Versus

Shri Sham Enterprises - Opp.Party(s)

Jatinder Marria

15 Jun 2017

ORDER

DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :         328

Date of Institution :   7.11.2016

Date of Decision :     15.06.2017

Sidharth Jain aged 24 years, s/o Sudhir Kumar r/o Railway Road, Kotkapura, Tehsil Kotkapura, District Faridkot.                                      .....Complainant

Versus

1. Shri Sham Enterprises, Near Railway Station, Kotkapura through its proprietor.
2.   Samsung Care Centre, Near Chibber Motors, Faridkot Raod, Kotkapura, Tehsil Kotkapura, District Faridkot.
3.  Samsung India Electronics Pvt Ltd, A 25, Ground Floor, Front Tower, Mohan Co-operative, Industrial Estate, New Delhi-110044 through its MD.

......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum:     Sh. Ajit Aggarwal, President.

Sh P Singla, Member.

Present:       Sh Jatinder Marria, Ld Counsel for complainant,

Sh Jatinder Bansal, Ld Counsel for OPs.

 

ORDER

(Ajit Aggarwal , President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the defective mobile hand set with new one or to refund its cost price of Rs.55,900/- and for also directing Ops to pay Rs.40,000/- as compensation for mental agony and harassment etc and litigation expenses.

2                                           Briefly stated, the case of the complainant is that on assurance of OP-1 regarding best quality and efficiency, complainant purchased a mobile phone of Samsung model Galaxy S7 Edge IMEI No. 357327070339045 from OP-1 vide bill dated 21.03.2016 on cash payment of Rs.55,900/-. OP-1 also gave guarantee of one year against any defect in phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang and started switching off without any command and stopped working. Complainant reported this fact to Op-1 and on instructions of OP-1 complainant approached OP-2/ the service care centre of Ops and when complainant reported the matter to OP-2, he put the complainant off saying that this problem is a minor issue and would be corrected itself, but this problem did not solve and ultimately on 6.09.2016, power key of his mobile stopped working and mobile did not work. Complainant immediately approached OP-1, reported the entire problem and requested him to replace the mobile in question. On advice of OP-1, complainant again approached OP-2 the service care centre and disclosed him the whole problem. Op-2 kept the mobile in question and asked complainant to come after a week and on 19.09.2016, Op-2 returned the said phone to complainant with assurance that defect in phone has been removed, but same problem persisted again and again and complainant again submitted his mobile phone to OP-2, who used to keep the same, but did not remove the defect. On 18.10.2016, OP-2 returned the mobile phone to complainant but he noticed that some screws of his mobile handset were missing and chip of mobile was replaced and even back cover of his phone was not properly fixed. It is further submitted that now, mobile phone of complainant is locked and is unable to process. On complaint regarding this, Op-2 told that said phone would work after four lac minutes and refused to remove the defect and also humiliated the complainant. it is further submitted that there is a manufacturing defect in mobile in question and action of Ops in selling defective mobile piece to complainant and further their failure to replace the mobile and in not giving effective services, amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for directions to Ops to replace the defective mobile hand set with new one or to refund its cost price of Rs.55,900/- and for also directing Ops to pay Rs.40,000/- as compensation for mental agony and harassment etc and litigation expenses. Hence, the complaint.

3                                                     The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 8.11.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                On receipt of the notice, Ops filed reply taking preliminary objection that complaint filed by complainant is false, frivolous and is gross abuse of process of law. It is asserted that complainant has concealed the material facts and he has not come to the Forum with clean hands. Defect of power key not working alleged by complainant is not an inherent problem, rather it is due to mishandling by complainant. It is averred that till date complainant submitted his handset with OP-2 on 10.09.2016 and 8.10.2016 and on both the occasions, the problems reported by complainant regarding power key and auto touch were duly rectified to the entire satisfaction of complainant and mobile in question was delivered to complainant in okay condition and it proves that mobile of complainant is working perfectly. Moreover, defect in mobile was duly rectified by answering Ops without charging any consideration and there is no deficiency in service on their part. Complainant has levelled false allegations and therefore, present complaint is liable to be dismissed. Moreover, this Forum has no territorial jurisdiction to hear and try the present complaint. There is no inherent defect in mobile in question and moreover, the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and it might have been mishandled. It is averred that complainant has not brought on record any expert evidence to prove his allegations. There is no manufacturing defect in the mobile in question. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of technical expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. However, on merits, Ops have denied all the allegations levelled by complainant being wrong and incorrect, and reiterated that there is no deficiency in service on the part of Ops. All the other allegations and allegation with regard to relief sought too are refuted being wrong and incorrect and prayed for dismissal of complaint.

5                                         Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-4 and then, closed the evidence.

6                                     Ld Counsel for OPs tendered in evidence affidavit of Anindya Bose as Ex OP-1, document Ex Op-2 and then, closed the evidence on behalf of OPs.

7                                         We have heard the ld counsel for parties and have carefully gone through the evidence and documents placed on record by respective parties.

8                                          The ld Counsel for complainant argued that on assurance of OP-1 regarding best quality and efficiency, complainant purchased a mobile phone of Samsung model Galaxy S7 Edge from OP-1 vide bill dated 21.03.2016 on cash payment of Rs.55,900/-. OP-1 also gave guarantee of one year against any defect in phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang and started switching off without any command and stopped working. Complainant reported this fact to Op-1 and on instructions of OP-1 complainant approached OP-2/ the service care centre of Ops and when complainant reported the matter to OP-2, he put the complainant off saying that this problem is a minor issue and would be corrected itself, but this problem did not solve and ultimately on 6.09.2016, power key of his mobile stopped working and mobile did not work. Complainant immediately reported the entire problem to OP-1 and requested him to replace the mobile. On advice of OP-1, complainant again approached OP-2 the service care centre and disclosed him the whole problem. Op-2 kept the mobile in question and asked complainant to come after a week and on 19.09.2016, Op-2 returned the said phone to complainant with assurance that defect in phone has been removed, but same problem persisted again and again and complainant again submitted his mobile phone to OP-2, who used to keep the same, but did not remove the defect. On 18.10.2016, OP-2 returned the mobile phone to complainant but he noticed that some screws of his mobile handset were missing and chip of mobile was replaced and even back cover of his phone was not properly fixed and now, mobile phone of complainant is locked and is unable to process. On complaint regarding this, Op-2 told that said phone would work after four lac minutes and refused to remove the defect and also humiliated the complainant. There is a manufacturing defect in mobile in question and action of Ops in selling defective mobile piece to complainant and further their failure to replace the mobile and in not giving effective services, amounts to deficiency in service on the part of Ops. He has prayed for accepting the present complaint.

9                                 To controvert the allegations of complainant, ld counsel for OPs argued that present complaint is false, frivolous and is gross abuse of process of law. It is averred that complainant has levelled false allegations and he has concealed the material facts and he has not come to the Forum with clean hands. Defect of power key not working alleged by complainant is not an inherent problem, rather it is due to mishandling by complainant. It is averred that till date complainant submitted his handset with OP-2 on 10.09.2016 and 8.10.2016 and on both the occasions, the problems reported by complainant regarding power key and auto touch were duly rectified to the entire satisfaction of complainant and mobile in question was delivered to complainant in okay condition and it proves that mobile of complainant is working perfectly. Moreover, defect in mobile was duly rectified by answering Ops without charging any consideration and there is no deficiency in service on their part. Complainant has levelled false allegations and therefore, present complaint is liable to be dismissed. It is further averred that this Forum has no territorial jurisdiction to hear and try the present complaint. There is no inherent defect in mobile in question and moreover, the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and it might have been mishandled. It is averred that complainant has not brought on record any expert evidence to prove his allegations. There is no manufacturing defect in the mobile in question. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of technical expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. Allegations regarding defect in mobile are totally baseless. Ops have denied all the allegations levelled by complainant being wrong and incorrect, and reiterated that there is no deficiency in service on their part. It is further submitted that there is no deficiency in service on the part of their part and prayed for dismissal of complaint.

10                                     After careful observation of the record placed on file and evidence led by parties, it is observed that it is the admitted case of the parties that complainant purchased the mobile phone manufactured by OP-3 from OP-1, but it is totally refuted that there is any defect in the said mobile handset. Main contention of complainant is that though complainant handed over his mobile phone to Ops several times but despite repeated requests, Ops did not remove the defect and set it right. On the other hand, Ops have denied all the allegations of complainant but admitted before the Forum that complainant purchased the mobile in question from OP-1 on 21.03.2016 and it is also admitted by Ops that complainant handed over the said mobile to answering Ops for removing the  defect of hanging, power key and auto touch. Ops stressed mainly on point that complainant submitted his mobile to them on 10.09.2016 and 8.10.2016 with  problem of hanging, auto touch and power key and on both the occasions, all defects in mobile were removed to the satisfaction of complainant and it was handed over to complainant in okay conditions and now it is working perfectly. Ops have also asserted that hanging might be due to mishandling or it might be that complainant was using the non compatible mobile applications and games leading to alleged problem of hanging in said mobile handset. Allegations regarding locking of phone, missing of chip and assertion of Ops that it would work after four lac minutes are strictly denied by Ops being wrong and incorrect. Moreover, Ops never refused to give services to complainant and asserted that there is no manufacturing defect in phone in question and prayed for dismissal of complaint.

11                              Complainant has relied upon Ex C-2, which is copy of bill dt 21.03.2016, it clearly proves the fact that complainant is the consumer of Ops and Ex C-1 is the affidavit of complainant, wherein he has reiterated the pleadings taken in main complaint and prayed for Redressal of his  grievance. EX C-3 is the copy of job sheet which proves the defect description of phone as auto work touch + battery back up low + heat, which were not removed by Ops. There is no doubt that complainant purchased the mobile in question from Ops and mobile phone in question is not defect free. Moreover, Ops have also admitted that complainant submitted his mobile to them for two times once on 10.09.2016 and second time on 8.10.2016. Had the Ops given best services and removed the defect from the mobile in question upto satisfaction of complainant, he would not have come to the Forum for redressal of his grievance.

12                                           From the above discussion and keeping in view the circumstances of the case, it is made out that there was one year warranty against any defect on mobile in question and within this warranty period, OPs are liable to repair and remove all the defects from the phone. Now, the Ops can not escape from their liability to provide satisfactory services regarding mobile phone in question. Hence, complaint in hand is hereby accepted. Ops are directed to replace the mobile handset of complainant within one month of receipt of the copy of the order. Ops are further directed to pay Rs.4,000/-to complainant as consolidated compensation for harassment and litigation expenses. Compliance of the order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 15.06.2017                                

Member                     President

          (P Singla)                 (Ajit Aggarwal)