SRI BIJOY KUMAR DAS,PRESIDENT:-
Unfair trade practice and deficiency in service by not providing proper service to the complainant’s mobile phone during the existence of the warranty period are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that, Complainant purchased a mobile telephone from OMM Enterprises,Sahid Nagar,Bhubaneswar manufactured by SAMSUNG INDIA PVT.Ltd. on dtd.28.05.2017 by paying an amount of Rs.13,800/- bearing Model No.G.570(J5PRIME) and received the Retail Invoice and warranty card in support of purchase of mobile hand set. It is alleged that after purchase of the few days of the mobile handset, some defects erupts into it, and as per the terms and condition of the warranty the said mobile handset was produced before the local authorized centre of OP-Company. The allegations of the complainant on defects of the mobile hand set connected to sudden change of mode and spots appeared in the screen of the set. OP No.1, the authorized service centre on rectifying the defect of sudden change of mode demanded Rs.230/- from the complainant. But on rectification of spot on the screen, OP No.1 authorized Service Station though received the complaint, but did not act professionally to produce any result to comply the alleged grievance of the complainant. Complainant also alleges vicarious liability of the Ops for their non-performance and unfair trade practice. The cause of action of the instant case arose on different dates and lastly on dtd.15.03.18, when the hand set was produced before OP No.1 for its rectification. In the complaint it is prayed that a direction may be given to Ops to rectify the defects or to replace the same by a new one and to refund Rs.230/- alongwith 10 per cent interest per annum from dtd.01.06.2017 and to pay a compensation of Rs.10,000/- alongwith cost of litigation.
3. On receipt of the Notice, Ops appeared through their Ld. Counsel and filed written statement into the dispute as preliminary objection on grounds of maintainability and on parawise reply deny the allegations arrayed for manufacturing defects. On preliminary objection Ops challenge the maintainability of complaint on grounds of territorial jurisdiction and cited a number of decision of different State Commissions, National Commission and Hon’ble Apex Court. Ops on their parawise replies and countering the facts of the dispute averred that the allegations made by complainant are not any manufacturing defects on the hand set, rather the change of mode meant for ‘blind person’ and up-dating of the software are not covered under warranty and it is a paid service provided to the complainant for PUK locking. On the second allegation of ‘spot in the Display’ it is countered that on verification it is found that the spot occurs due to use of external force the mobile is physically damaged at users end and such condition is not covered under warranty. In this situation no deficiency in service is committed by the OPs as complainant-customer does not produce any evidence of manufacturing defect by not sending the mobile set for laboratory test, hence the complaint may be dismissed with cost.
4. Take up the hearing today, perused the documents filed into the dispute, which includes the attested photo copy of retail invoice dtd.28.05.17 the payment receipts granted by Tarini Mobiles,Kendrapara dtd.01.06.17 and photo copy of the warranty card. The admitted facts of the case are that, complainant’s mobile hand set was repaired that, complainant’s mobile hand set was repaired by OP No.1-authorised service centre just after 5 to 6 days of its purchase on payment of Rs.230/-. It is also admitted that, the further defects in said mobile as ‘spots in the display’ was brought into the notice of the Ops. Before discussing the factual and legal question involved into the dispute, the maintainability of the complaint is to be decided as raised by the Ops on ground of ‘territorial jurisdiction’ by citing a number of decisions. Ops give emphasis on Sec.11 of C.P.Act,1986 and averred that, the complaint is not maintainable as Ops have neither any office or branch office located and nor any part of the cause of action arose within the local limits of this Forum. In this question and on perusal of documents, it appears that, the alleged defects in said mobile set are a part of cause of action, and production of mobile set before the authorized service centre,OP No.1 located at Kendrapara, which is within local limits of this Forum. Hence, the complaint is maintainable before this Forum U/S-11 of C.P.Act,1986.
The complaint, documents presented before us reflects that, the alleged defects in the said mobile set occurred just within a few months of its purchase and during the existence of the warranty period. It is also clear that, the complainant has paid an amount of Rs.230/- for normal functioning of the set just within 5 to 6 days of its purchase. The Ops on their defence of non-committing any deficiency in service or unfair trade practice pleaded that the alleged defects are not covered under warranty and due to users mishandle such defects occurred in the mobile set. It is the further defence plea of the Ops, that complainant has failed to prove his allegations of any manufacturing defect by not sending the mobile hand set for a test at laboratory, as Burden of proof lies with the complainant-customer to prove such allegations. In the circumstances, this Forum opines that, during the existence of the warranty period and repair took place on the authorized service centre within a few days of purchase of mobile set, it is not always required to produce the expert opinion or laboratory report to justify the allegations, when the defects are noticed into open eye. Further the warranty card issued by Ops in their terms and conditions of clause ‘standard service process’, which discloses that change in setting and minor adjustment if any required, same can be solved through customer contract centre, but in the instant case the Ops have received Rs.230/- on dtd.01.06.17 for such adjustment without adhering the terms and conditions of the warranty. On defence plea of the ‘spot on screen/display by use of external force is not proved by the Ops adducing any evidence as ‘onus’ lies with the Ops to prove the charge of use of external force. Hence, it is clear that, charging Rs.230/- as paid service and not rectifying the defects of spots in screen/display are treated as deficiency in service or unfair trade practice. The claim of the complainant to replace a new mobile set of same model is a premature relief sought at this stage. In our opinion another opportunity is to given to Ops to rectify the defects, if any with free of cost and upto the best satisfaction of the complainant alongwith refund of Rs.230/- to the complainant.
Having observations reflected above, it is directed that complainant shall produce the case mobile set before the OP No.1 authorized service centre for its rectification and on receipt of the mobile set, OP No.1 shall rectify the defects and delivered the set to the complainant within 7 days of receipt of the mobile set and OP No.2 shall issue an extended warranty of one year from the date of handing over the defect free mobile to the complainant. It is further directed that OP No.2 shall refund the amount of Rs.230/- alongwith cost of litigation of Rs.1,000/-(Rupees One thousand)only within one month of receipt of this order. If Ops fails to comply the directions process be initiated under the provisions of C.P.Act,1986.
Complaint is allowed in part with cost on merit against Ops.
Pronounced in the open Court, this the 21st day of January,2019.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
