Tamil Nadu

North Chennai

149/2012

Lalith Jain, - Complainant(s)

Versus

Sri Jaidev Gurudev Impex,rep.by its Manager, - Opp.Party(s)

M.Sunil kumar

11 Jan 2017

ORDER

                                                            Complaint presented on:  28.06.2012

                                                                Order pronounced on:  11.01.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 11^th   DAY OF JANUARY 2017

 

C.C.NO.149/2012

 

Lalith  Jain,

S/o Dhiraj Bohra,

No.51B, Bakery Street,

Choolai, Chennai – 600 112.

 

                                                                                    ….. Complainant

 

..Vs..

1.Sri Jai Gurudev Impex,

Rep. by its Manager,

No.11/17, Ksi ChettyLane,

Sahrasala Complex,

Chennai – 600 079.

 

2.Nava Telecoms,

Authorised Samsung Service Centre,

Rep. by its Manager,

No.B, 70 1^st Floor, Purasaiwakam High Road,

Kilpauk (Opp. To Viveks),

Chennai – 600 010.

 

3. Samsung India Pvt. Ltd.,

Rep. by its Managing Director,

No.2^nd, 3^rd , 4^th Floor,

Tower C, Vipul tech Square,

Sector 43, Gurgaon – 122 009,

Haryana, India.

 

4. Alvan Telecom,

Represented by its Manager,

No.340, F7, Paper Mills Road,

Opposite Lourdes Church,

Perambur, Chennai – 600 011.

 

.....Opposite Parties

Date of complaint                                 : 02.07.2012

Counsel for Complainant                      : M.Sunil Kumar

Counsel for 1^st opposite party                  : M/s.K.Srinivasan & M.Krishnakumar

 

Counsel for 3^rd Opposite Party                       : M/s V.V.Giridhar, P.Suresh,

                                                                     K.Senthil

 

Counsel for 2^nd & 4^th Opposite Parties      : Ex – parte

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

The Complainant purchased a Samsung   mobile phone bearing model No:GT-I 9003 for a consideration of Rs.18,800/- on 31.01.2012 at the shop of first opposite party/dealer.  Within 10 days of the purchase, the mobile phone had stopped displaying the incoming call numbers. Therefore, the Complainant approached the 1^st opposite party and the 1^st opposite party rectified the defect in the Complainant’s mobile phone. However within a week the same trouble arose, again the Complainant approached the 1^st opposite party and he inturn advised the Complainant to contact the authorized service centre of the 3^rd opposite party. Then, the Complainant on 28.02.2012 contacted the 2^nd opposite party and handed over the mobile that the incoming numbers were not displayed. The 2^nd opposite party gave job sheet number 4165 dated 28.02.2012. After two days mobile phone was returned to the Complainant saying that the software of the said phone updated. Again within two days the same problem arose, the 2^nd opposite party gave another job sheet dated 03.03.2012 and after rectification the mobile was handed over to the Complainant after two days by changing the sensor IC. Again, after two days the same problem of incoming calls was not shown and the display getting off frequently and work order number 4606 dated 14.03.2012 was issued. Then the Complainant informed that once the mother board changed, there would be no issues and the mobile was delivered to him on 16.03.2012.  After two days the same problem arose, the authorized service centre gave evasive reply and the Complainant could not understand what the 2^nd opposite party/service centre had done. Therefore the service done by   the 2^nd opposite party is negligent one. Then the Complainant contacted the call centre and on their guidance the 4th opposite party assured that the mobile would be replaced. The 2^nd  & 4^th  opposite party have not rectified the problem and thereby committed deficiency in service the 3^rd opposite party is a manufacturer and hence he is also liable for their act and also the 1^st opposite party/dealer. Therefore the Complainant issued legal notice dated 20.04.2012 and thereafter filed this complaint to refund the cost of the mobile and compensation for mental agony with cost of the complaint.

          2. The 2^nd & 4^th remained absent and they were set ex – parte.

 

3. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF

          The 1^st Opposite Party is a dealer in mobiles and electronic goods. On 31.01.2012 the Complainant Mr.Lalith Jain purchased a Samsung 9003 mobile bearing No.3599300 40729241 in invoice No.20406 issued by 1^st Opposite Party for a price of Rs.18,800/- inclusive of vat. The Complainant after satisfying its features and its condition, further on verifying the product including the warranty card and period of warranty and those items which are covered etc., the Complainant after his full satisfaction paid the price and taken delivery of the product and there is no dispute with regard to that. The Complainant approached the 1^st Opposite Party after 10 days while using the said Samsung phone, complained about its problem which means the numbers are not displayed at the screen. Immediately this Opposite Party received the Complainant and after studying the nature of Complaint had reset the mobile. The Complainant after satisfying himself had again taken delivery of the mobile and returned to the 1^st Opposite Party after ten days with a similar Complaint. At this juncture, the 1^st Opposite Party had requested the Complainant to approach the service centre being printed on the reverse side of the invoice subject to their choice, on the ground that the 1^st Opposite Party is a dealer and to display the company’s products and to have a show room and invite the customers and to promote the sales only. For any Complaints regarding after sales, if it is within the period of warranty or beyond the period of warranty, the customer has to approach the authorized service centre of the product. Thereafter, the Complainant approached the 2^nd party on 28.02.2012 to the authorized centre and the Complaint was attended by the 2^nd Opposite Party has issued a job card as they have referred and the problem of non display of incoming calls were attended by updating the software of the phone. Again after two days there was a Complaint of similar problem on 03.03.2012 and immediately it was attended by using job card. The whole mistake was set right and sensor I.C. was changed. Similarly, another Complaint was made by the same Complainant on 14.03.2012 and mother board was changed. The 1^st Opposite Party has come to know about this and he has no direct knowledge about the Complainants made to the servicing centre.  Further at this stage one important fact which is to be borne in mind is the proper usage and handling. This sophisticated mobile requires careful handling and it should not fall down even once. This opposite party is no way liable as a dealer and hence prays to dismiss the complaint with cost.

4. WRITTEN VERSION OF THE 3^rd OPPOSITE PARTY IN BRIEF

          This Opposite Party states that they are not aware of the Complainant’s purchase of Samsung mobile from the 1^st Opposite Party on 31.01.2012. The problem complained of and other details are only known to the Complainant and Opposite Parties 1 and 2. This Opposite Party was never told by the 1^st Opposite Party about any problem and it is now made known that the Complainant was asked to contact the 2^nd Opposite Party who did repairs. The Complainant had taken delivery of the mobile only after fully satisfying himself after repairs. The Opposite Party understands that the Complaints given were attended to. The Complainant’s various alleged letters and notice alleged to be sent to this Opposite Party were not received. This Opposite Party submits that they have not committed any Deficiency in Service. This Opposite Party got no letters; they are not responsible in any manner to the various allegations made in the Complaint. This Opposite Party a renowned manufacturer manufactures good quality products/ consumables which are sold in the market by various dealers. There is no cause of action against this Opposite Party, for there is no specific question of Deficiency in Service committed by this Opposite Party, hence this Opposite Party is not liable to compensate as prayed for and prays to dismiss the Complaint with cost.     

5. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1 

The Complainant had purchased a Samsung   mobile phone bearing model No.GT-I  9003 on 31.01.2012 at the first opposite party/dealer for a consideration of Rs.18,800/- under Ex.A1 invoice.  The 3^rd opposite party is the manufacturer of the Samsung mobile phone and the 2^nd & 4^th opposite parties are the authorized service provider of the 3^rd opposite party/manufacturer.

          7. After purchase of the mobile, within 10 days the mobile phone had not displayed the incoming call numbers and the Complainant approached the 1^st opposite party and he re-set the mobile phone. After one week again the same problem arose and the 1^st opposite party advised him that the Complainant should approach the 2^nd opposite party authorized service provider of the 3^rd opposite party/manufacturer.  The Complainant also handed over the mobile on 28.02.2012 to the 2^nd opposite party, who updated the software. Thereafter frequently on 03.03.2012, 14.03.2012 and subsequent days the same problem of incoming calls were not shown in the mobile phone, even though in all occasions the 2^nd opposite party attended the problem and he could not rectify the problem permanently  and therefore the product is having inherent defect and hence the opposite parties have committed deficiency in service.

          8. The 3^rd opposite party contended that whenever the mobile phone was handed over to the 2^nd opposite party the problem of incoming calls not shown and the same was rectified under Ex.A3, Ex.A4 & Ex.A7 and after such rectification the Complainant has received the product to his satisfaction and therefore the 3^rd opposite party manufacturer has not committed any deficiency in service.

9. According to the Complainant within ten days of the purchase he handed over the mobile for display of incoming call numbers defect to the 1^st opposite party and that was rectified by the 1^st opposite party. However for the same there was no document available. The first opposite party admits in his written version that after 10 days while using the mobile phone, he complained that the numbers are not displayed and he rectified the problem and after 10 days again the Complainant approached with similar complaint and then he advised the Complainant to approach the authorized service centre / 2^nd opposite party for the 3^rd opposite party. This fact proves that even before approaching the 2^nd opposite party the product became defective within 10 days of the purchase and after rectifying the incoming call not shown problem, again the same problem arose in another 10 days.  The 2^nd opposite party/service provider of the 3^rd opposite party rectified the defects under Ex.A3, Ex.A4, and Ex.A7 and even after that the same problem of incoming calls display not shown, arose which could not be rectified. The 2^nd opposite party could have properly rectified the defect or the product is a good one, the defect of failure of display would not have arisen frequently. Hence as contended by the Complainant,   the 2^nd opposite party has not rectified the problem under Ex.A3, Ex.A4, Ex.A7 properly and hence within few days again the same problem arisen in the product. Therefore the above documents and the evidence of the complainant and the pleadings from the written version of the 1^st opposite party prove that the product sold to the Complainant is having inherent defect and same could not be rectified by the service provider.

          10. The 3^rd opposite party relied on an order of the MAHARASTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI reported in I (2009) CPJ 371 (GODREJ & BOYCE MFG. CO.LTD VS. PRAFULLAKHATU) that the defects rectified whenever pointed out, then the opposite party is not liable for the deficiency in service.  In the case in hand even after three times the 2^nd opposite party/service provider rectified the defect, the same problem occurred and through call centre the Complainant approached the 4^th opposite party service provider and the 4^th opposite party informed the Complainant that in case of mobile could not be repaired the same would be replaced. However the mobile was not replaced to the Complainant, the defect continued to persists in the Complainant mobile. Therefore in the circumstances case, the above order of the Maharastra, State Commission would not apply to the facts of the case in hand.

          11. Therefore, for the forgoing discussions we hold that the product sold to the Complainant  is having inherent defect and the  same could not be rectified by the 2^nd & 4^th opposite party  /service providers of the 3^rd opposite party/manufacturer and hence it is held that the opposite parties 2^nd to 4^th have committed deficiency in service. The 1^st opposite party only a dealer and he has nothing to do with the service done by the other opposite parties and therefore we  hold that the 1^st opposite party has not committed any deficiency in service.

12. POINT NO:2

          The opposite party counsel relied on judgment of the SUPREME COURT OF INDIA reported in  II (2006) CPJ 3 (SC)  (MARUTI UDYOG LTD VS. SUSHEEL KUMAR GADGOTRA & ANR) where it is held that request for the replacement of car having manufacturing defects necessarily repaired and replacing of components carried out free of charges during warranty period and directing replacing of vehicle not justified. Relying on the above judgment of the Supreme Court, the 3^rd opposite party counsel contended that the product cannot be replaced.  In the case in hand also number of occasions the 2^nd opposite party serviced the product within the warranty period and he is unable to rectify the problem.  The 4^th opposite party also though assured to replace the product, it was not done, since the product itself could not be rectified by the service provider and in view of the same the above referred judgment of the Supreme Court of India is not applicable to the facts of the case in hand and in such circumstances, it would be proper to order that the opposite parties 2 to 4 shall refund the cost of the product of Rs.18,800/- to the Complainant would be the appropriate relief. Due to the product was not rectified by the opposite parties the Complainant suffered with mental agony is accepted and for the same it would be  appropriate to order a sum of Rs.10,000/- towards compensation for mental agony and besides a sum of Rs.5,000/- towards litigation expenses.  The Complainant sought other relief of transportation charges and loss of business due to the product has became defective and to prove the same no acceptable evidence is available and therefore for such reliefs  the Complainant is not entitled and  in respect  of the 1^st opposite party the Complaint is liable to be dismissed.

          In the result the complaint is partly allowed. The opposite parties 2^nd to 4^th jointly or severally are liable to refund the cost of the mobile phone of Rs.18,800/-(Rupees eighteen thousand and eight hundred only) to the Complainant and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. Further, the opposite parties while refunding the amount the Complainant simultaneously should hand over the mobile phone to them. The complaint in respect of the 1^st opposite party and other reliefs sought in the complaint are dismissed.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 11^th day of January 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 31.01.2012                   Copy of the bill of the 1^st Opposite Party

 

Ex.A2 dated 28.02.2012                   Copy of the visiting card stating about the service

                                                   Request

 

Ex.A3 dated 03.03.2012                   Copy of the service request 2^nd Opposite Party

 

Ex.A4 dated 14.03.2012                   Copy of the service request 2^nd Opposite Party

 

Ex.A5 dated 20.04.2012                   Legal notice sent by the Complainant to the

                                                   Opposite Parties

 

Ex.A6 dated NIL                     Acknowledgement for legal notice dated

                                                   20.04.2012

 

Ex.A7 dated 25.04.2012                   Service request along with the original handset

                                                   handed over proof

 

 

 

Ex.A8 dated 01.06.2012                   Legal notice sent by the Complainant to the

                                                   Opposite Parties

 

Ex.A9 dated NIL                     Acknowledgement for legal notice dated

                                                   01.06.2012

 

 

LIST OF DOCUMENTS FILED BY THE  1^st  OPPOSITE PARTY :

Ex.B1 dated 13.07.2012                   Tax Invoice        

LIST OF DOCUMENTS FILED BY THE  3^rd  OPPOSITE PARTY :

                                                ……. NIL ……..

 

MEMBER – II                                                               PRESIDENT