Punjab

Moga

CC/16/125

Jasbir Kaur - Complainant(s)

Versus

Tarsem Telecom - Opp.Party(s)

Ms. Divya Rani

23 Nov 2016

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 125 of 2016

                                                                                      Instituted on: 22.07.2016

                                                                                      Decided on: 23.11.2016

 

Jasbir Kaur, aged about 27 years, wife of Sh. Dharminder Kumar, resident of c/o Y.K.Fashion Boutique, Gurdware Wali Gali, Gobindgarh Basti, near Raj Di Chakki, Moga.

                                                                          ……… Complainant

 

Versus

1.       Tarsem Telecom, Watch and Radio System, near Gurdwara Bibi Kahan Kaur, Court Road, Moga.

 

2.       Samsung Customer Satisfaction, 2^nd Floor, Tower-C Vipal Tech. Square Sector 43, Gol Course Road, Gurgaon, Haryana- 122002.  

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Ms. Divya Rani, Advocate Cl. for complainant.

                   Sh. Satvir Singh Gill, Advocate Cl. for opposite party no.1.

                   Sh. Vishal Jain, Advocate Cl. for opposite party no.2.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 ( hereinafter referred to as the "Act") against Tarsem Telecom, Watch and Radio System, near Gurdwara Bibi Kahan Kaur, Court Road, Moga and others (hereinafter referred to as the opposite parties) directing them to replace mobile set make Samsung J-5, 4-G, IMEI no.35267897506085, 9306083, color gold purchased from opposite party no.1 vide bill no.001 dated 11.01.2016 or to refund Rs.12,000/- the price of the abovesaid mobile set. Further opposite parties may be directed to pay Rs.10,000/- on account of compensation, damages, mental tension and deficient services to the complainant or any other relief which this Forum may deem fit and proper be granted.

2.                Briefly stated the facts of the case are that complainant purchased one mobile make Samsung J-5, 4-G, IMEI no.35267897506085, 9306083, color gold on 11.01.2016 worth Rs.12,000/- from opposite party no.1. At the time of delivery, the opposite party no.1 has given warranty for one year against any manufacturing defect. Since the time of purchase, the said set was not working properly and it was a headache for the complainant. After few days, the said mobile set was not working properly and there was problem of hang over in the said set. The complainant went to opposite party no.1 various times and requested them to replace the abovesaid mobile handset as there is some technical defect in the said mobile set. But the opposite parties did not pay any heed to the request of the complainant and refused to replace the same without any rhyme or reason. The service rendered by the opposite parties is deficient one and complainant has been harassed unnecessarily. Hence this complaint.

3.                Upon notice, opposite party nos.1 & 2 appeared through counsel and filed their separate written replies.

                   Opposite party no.1 filed written reply by taking certain preliminary objections that the present complaint of the complainant is not maintainable in the present Form; that the complainant has got no cause of action to file the present complaint against the answering opposite party; that the complainant had not come to the Court with clean hands and she had concealed the material facts from this Forum. Actual facts are that answering opposite party is not dealer of Samsung Company. He used to purchase the mobile phones of various brands from authorized dealers and sell the same to customers by taking some profit. On 11.01.2016, the answering opposite party had sold on mobile of Samsung for Rs.12,000/- to the complainant and in this regard the answering opposite party had issued a bill to complainant, on said bill it is specifically mentioned that the warranty will be provided only by the service centre of Samsung Company. After that, the complainant approached answering opposite party and reported that there is some problem in the set and answering opposite party requested the complainant that warranty of said set can be provided by the service centre of Samsung Company and also advised him to take the original bill and mobile set and went to service centre, as he has no authority to check the mobile or remove the defect. Moreover, the complainant filed to mention the specific defect in the mobile phone. She has filed the complaint without mentioning the class of defect and without attaching any documentary evidence regarding alleged defect. That the complaint of the complainant is bad for mis-joinder and non-joinder of necessary parties, the service centre of Samsung company is essential party to the present complaint; that the complainant had not sent any type of notice to the answering opposite party, which is mandatory as per provision of Consumer Protection Act. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint has been made.

4.                Opposite party no.2 filed written reply taking certain preliminary objections that the complainant is not entitled for any relief from this Forum as she has concealed the true and material facts; that the complainant has not come before this Forum with clean hands. The mobile handset in question has been purchased on 11.01.2016 and till date as per the record of answering opposite party complainant has never submitted her handset with any authorized service centre for any kind of repair. The complainant has failed to disclose or specify any kind of problem she is facing in the handset and she also fail to mention if she ever visited any service centre and reported any problem in her handset. This shows that handset of complainant is perfectly working and there is no defect in the handset. The complainant has now filed the present complaint alleging totally false facts against the answering opposite parties and concealed the true fact regarding the condition of her handset. Thus present complaint is liable to be dismissed for concealment of true facts qua answering opposite party. The complainant has not sought the permission of this Forum under section 11 (2) (b) of Consumer Protection Act, 1986 before instituting the present complaint against the answering opposite party. Section 11 (2) (b) of Consumer Protection Act, 1986 clearly prohibits institution of any complaint before the District Forum if any of all of the opposite parties reside outside the territorial jurisdiction of District Forum unless and until permission is sought from the District Forum for the institution of complaint. Till date the complainant has not sought any permission for the institution of instant complaint within the territorial jurisdiction of this Forum, hence the further proceedings in the instant case is bad in the eye of law. The answering opposite party has no branch office within the Territorial Jurisdiction of this Forum, hence as such institution of complaint of the complainant is not tenable in the eye of law; that the present complaint is liable to be dismissed u/s 26 of the Consumer Protection Act, as the present complaint is gross abuse of the process of law and is based on false, frivolous and baseless allegations. The handset in question is perfectly working as till date complainant has never submitted her handset for repair with any authorized service centre. The complainant has filed the present complaint alleging totally false allegations. The complainant has filed the present complaint with ulterior motive. Thus, the present complaint is liable to be dismissed with heavy cost; that the obligation of the answering opposite party under warranty is subject to warranty terms and conditions as mentioned in warranty card supplied with the product at the time of sale. The performance of the mobile phone depends upon the physical handling of the product. In the present case, the mobile handset is perfectly working as complainant has never approached any authorized service centre with any kind of problem till date. The liability of the answering opposite party is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. The complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central Approved Laboratories in support of alleged submission as required under law. In the absence of any expert evidence the claim cannot be allowed. The complainant claims the said mobile to be suffering from defects, therefore, it is the legal duty under the discharge of burden, upon the complainant to establish the same by Technical Expert Report, but no such report has been adduced by the complainant till date before this Forum, hence in the absence of any such Technical Expert Report, the complaint of the complainant cannot be decided as per the Provisions of C.P. Act, 1986; that the present complaint is gross misuse of process of law; that no cause of action has arisen in favour of the complainant and against the answering opposite party to file the present complaint. There is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or its service centre has never denied after sales services to the complainant. Rather the complainant has never approached any authorized service centre till date. The complainant has filed the present complaint with malafide intention to extract money from the answering opposite party by dragging in unwanted litigation. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with costs has been made.

5.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex. C-1 and copy of the bill Ex.C-2 and closed the evidence. 

6.                In rebuttal, Sh.Tarsem Singh, Proprietor of opposite party no.1 tendered in evidence his duly sworn affidavit Ex.OP-1/1 and closed the evidence. Whereas, opposite party no.2 tendered in evidence duly sworn affidavit of Sh.Anindya Bose, Deputy General Manager, Samsung India Electronics Pvt. Ltd. Ex.OP-2/1 and copy of warranty card Ex.OP-2/2 and closed the evidence.

7.                We have heard the learned counsel for the parties and have very carefully gone through record placed on file

8.                The case of the complainant is that on 11.01.2016, she purchased a mobile Samsung mobile set from opposite party no.1. The opposite party no.1 gave one year warranty on the said mobile set. But from the date of its purchase the said mobile set was not working properly. There is a problem of hang over in the said mobile set. The complainant visited to the office of opposite party no.1, but they failed to do the needful. The complainant requested the opposite parties either to repair the mobile hand set or to replace the same. But they refused to do so, which amounts to deficiency in service on their part. In reply opposite party no.1 admitted that the complainant purchased the mobile set in question from them on 11.01.2016 against duly issued bill. However, he argued that warranty of the mobile handset is to be provided by the service centre of Samsung Company and he has no authority to check or remove the defect in the mobile set. On the other hand, opposite party no.2 admitted that mobile set in question is manufactured by them and there was a warranty of one year of the said mobile set. Opposite party no.2 stated that as per their record the mobile set in question was never submitted with any authorized service centre for any kind of repair. The complainant has failed to disclose that she ever visited any service centre and reported any problem in her mobile set. Further the complainant has not set out any legitimate ground entitling her for replacement of mobile phone with damages and litigation costs. In the absence of any expert evidence the claim cannot be allowed.

9.                Now, it is admitted case of the parties that the complainant purchased the mobile set in question from opposite party no.1, which was manufactured by opposite party no.2 and the mobile hand set became defective after few days from the date of its purchase. On it, the complainants approached opposite parties for getting the mobile hand set repaired. But opposite parties did not do the needful, despite the fact that the hand set was within warranty period. Opposite party No.2, being the manufacturer of the mobile hand set in dispute are under legal obligation to do the necessary repair of the mobile hand set in dispute within warranty period. The only stand of opposite party no.2 is that the complainant never approached to them or their authorized service centre with report of any defect in the mobile set in question and failed to prove that there is any defect in the said mobile phone. So, she is not entitled for any relief. Moreover under the warranty terms and conditions, the company is only liable to repair the defective parts in the mobile phone and not to replace the mobile phone.        We are of the considered opinion that the manufacturing company cannot deny to remove the defect in the product within warranty period and the customer is entitled to get his product repaired free of costs under warranty conditions.

10.              From the above discussion, the present complaint in hand is hereby allowed against opposite party no.2. As such, opposite party no.2 is directed to repair the mobile hand set in dispute to the satisfaction of the complainant under warranty conditions. Further opposite party no.2 is directed to pay Rs.2000/-(Two thousand only) consolidate as compensation and litigation expenses to the complainant. The present complaint against opposite party no.1 stands dismissed, as he is only a retailer and the warranty is to be provided by manufacturing company. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under Section 25 and 27 of the Consumer Protection Act. Copy of order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 23.11.2016.

 

                                                 (Bhupinder Kaur)                    (Ajit Aggarwal)

                                                           Member                                     President