Delhi

North East

CC/69/2017

JASVINDER SINGH - Complainant(s)

Versus

SMASUNG INDIA PVT. LTD. - Opp.Party(s)

02 Apr 2018

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. 69/17

 

In the matter of:

 

	Jasvinder Singh S/o Sh. Atama Singh R/o D-26/1, New Govindpura Gali No. 8, Delhi-110051.	Complainant
	Versus
1.       2.       3.	MAA Vaishnavi Services Pvt Ltd 1, New Rajdhani Enclave, Preet Vihar Delhi-110092.   Care Zone A-16, Tagore Market, Kirti Nagar, New Delhi-110015.   Samsung India Pvt Ltd C-5, West Delhi Pocket, 1st Floor Janakpuri Delhi-110058.	Opposite Parties

 

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

25.02.2017 28.03.2018 02.04.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had purchased on 24.07.2016 a Samsung Mobile Phone model No. Samsung Z-3, bearing serial              No. 353418072017046 for a sum of Rs. 8,000/- from Anand Electronics 172, South Anarkali, Delhi-51 i.e. However, the said mobile started creating on off problem, internet and call not working, getting hung, network issues, storage full, call recording issue, temperature issues, touch not working, battery removed set working etc from the very next day for which the complainant visited the office of OP1 on several occasions between 25.07.2016 till 16.02.2017 when the mobile phone was submitted by the complainant with OP1 for repairs for few hours and was handed over by OP1 to the complainant on 25.07.2016, 08.08.2016, 19.10.2016 (complaint No. 30100144FA0516), 06.02.2017 (complaint No. 4230369189), 09.02.2017 (request No. 4230369189), 11.02.2017 (request No. 4210657436), 15.02.2017  and 16.02.2017 (request no. 4230950928). The complainant visited the office of OP2 & OP3 on 16.02.2017 for repair of his mobile but they clearly refused to repair his mobile phone and therefore the complainant was constrained to file the present complaint alleging deficiency of service on part of the OPs in failure to provide any service to the complainant and prayed for directions to be issued by this Forum to the OPs to refund Rs. 8,000/- as cost of the mobile to the complainant, pay Rs. 50,000/- to the complainant as compensation for harassment, mental agony and pain and  Rs. 10,000/- as cost of litigation.
2. Notice was issued to the OPs. OP1 and OP2 did not appear despite service effected on them on 24.03.2017 and were therefore proceeded ex-parte vide order dated 27.07.2017.
3. Written statement was filed by OP3 on 17.05.2017 in which the OP3 took the preliminary objection that the complainant had first approached the service centre on 12.09.2016 after two months of purchase of mobile with problem of auto off and hanging and the service centre engineer of the OP had duly repaired the said mobile by taking necessary steps as the mobile phone of the complainant was within the warranty period. The OP further submitted that yet again on 06.02.2016, the issues with the said mobile were resolved by the service centre to the utmost satisfaction of the complainant by replacing the requisite part of the said mobile and that there was no manufacturing defect in the mobile phone. The OP urged that the complainant had not been able to prove any deficiency in service or unfair trade practice qua the OP. The OP further urged that the complainant has sought the refund of price of the said mobile phone with interest, along with compensation and costs of litigation, which are clearly beyond the expressed terms and condition of warranty. The Hon’ble Supreme Court and the Hon’ble NCDRC in various judgments have settled that the replacement of product and/or refund of price cannot be granted until and unless complainant has proved by cogent, credible and adequate evidence supported by opinion/report of a technical expert that the product suffered from inherent manufacturing defect. The OP relied upon the judgment passed by Hon’ble NCDRC in Sushila Automobiles Ltd Vs Dr Birendra Narayan and Ors 3 (2010) CPJ 130 (NC) in which the Hon’ble National Commission observed that unless the onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of defect and/or replacement of the parts. The OP also urged that as per condition of warranty, replacement of the product or refund is expressly excluded and warranty cover only repair or replacement of any part thereof which needs replacement or repair for any reason of manufacturing defect or faulty workmanship which makes clear that when there is a defect in a part, it shall only be repaired. Further in case of physical damage the product only be repaired on chargeable basis. The OP relied upon the judgment by Hon’ble Supreme Court in STEREOCRAFT vs MONOTYPE India Ltd, New Delhi 2000 NCJ (SC) 59 in which the Hon’ble SC has clearly held that when terms of warranty does not cover refund or replacement, the consumer cannot claim either replacement of refund during or after the lapse of warranty period. The OP also urged that the complainant has failed to prove any negligence on the part of OP and any consequential loss or injury arising therefrom suffered by him and therefore is not entitled for any compensation. The OP while admitting that the complainant visited the service centre of the OP on 12.09.2016, 06.02.2017, 11.02.2017 and 16.02.2017 for repair of the mobile phone, submitted that on all such occasions, the service engineer of the OP resolved the problem of the complainant to his full satisfaction with respect to his mobile phone which continued to work without any problem for the next three months till filing of the written statement in May 2017 and therefore there was no manufacturing defect in the said mobile phone.
4. Rejoinder and evidence by way of affidavit was filed by the complainant. Evidence by way of affidavit was filed by OP3 through its AR.
5. Written arguments were filed by both the parties reiterating their complaint and defence.
6. We have heard the rival contentions of both the parties and have perused the documentary evidence placed on record of case file.

It is not in dispute that the mobile handset in question was giving functional problems and even admittedly within 2 months of its purchase as per OP was brought to its service centre for repairs and thereafter on various dates in February 2017 the mobile handset was giving problem in quick succession of network, storage, call recording, temperature, battery, hanging, downloading, tizen store not working etc when the said mobile was taken for repairs on 06.02.2017, 11.02.2017 and 16.02.2017 by complainant to the service centre of OP3. From the frequency of the acknowledgement of service request/ jobsheet pertaining to various defect descriptions with respect to the said mobile handset, we find force in the argument of the complainant that mobile was suffering from inherent manufacturing defect for which reason it had to be repeatedly taken to service centre of OP for repairs by the complainant while the said mobile was within the warranty period but the OP refused to either replace or repair the same despite request of the complainant. The OP has no where either in its written statement or evidence by way of affidavit filed the condition of warranty which expressly excluded replacement or refund of the product to substantiate or corroborate its defence for negation to do the either with respect to the mobile handset and therefore the defence taken by the OP is bald and unsupported by documentary evidence and rather contradictory in as much as on one hand the OP itself admits that there were functional problems with respect to the handset September 2016 onwards which was just two months after the purchase of the said mobile handset and on the other hand denied that there was any manufacturing defect in the mobile handset which required any replacement or refund. The Hon’ble National Commission in the Judgment of Sony Ericson India Ltd Vs Ashish Aggarwal (2007) IV CPJ 294 (NC), held that the fact that the components of the phone had to be changed frequently followed by change of handset proves deficiency on part of the mobile phone company and upheld the decision of the State Commission and ordered refund of the amount which was the consideration for purchase of handset.

We therefore find merit in the present case and allow the same in favour of the complainant against the OPs holding them jointly and severally guilty of deficiency of service. We award a sum of Rs. 8,000/- towards cost of the mobile, Rs. 5,000/- as compensation for harassment and mental agony and pain and Rs. 2,000/- as cost of litigation to the complainant payable by OPs jointly and severally. Let the order be complied within 30 days from the date of receipt of copy of this order.

7.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on (02.04.2018) 

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member