Orissa

Rayagada

CC/123/2018

Subhra Ranjan Swain - Complainant(s)

Versus

The Manager, India Electronic Pvt. Ltd., - Opp.Party(s)

Self

10 Sep 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 123/ 2018.                                        Date.  10. 9.  2020.

P R E S E N T .                

Dr. Aswini  Kumar Mohapatra,                                      President

Sri  Gadadhara  Sahu,                                                       Member.

Smt. Padmalaya  Mishra,.                                                Member

 

Sri Subhra Ranjan  Swain,  Main Road,  Po/  Dist: Rayagada, State:  Odisha.                                                                                                                    …….Complainant

Vrs.

1.The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-oprative Industrial Estate, New Delhi- 110044.

2.The Propritor, Reliance Digital Express, Gajapati  Junction, Rayagada(Odisha).

3.The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha                                                                         …  Opposite Parties.

For the Complainant:- Self.

For the O.P No.1 &3  :- Sri K. C. Mohapatra and associates, Bhubaneswar.

For the O.Ps 3 :-.Set  Exparte.

 

JUDGMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of mobile  price  a sum  of Rs. 32,200/- which was found  defective   during warranty period.

On being noticed  the O.P  No.1 & 2   neither entering in to appear before the forum nor filed their  written version inspite of more than  09 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.& 2.  Observing lapses of around 1 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P. No.1& 2. The action of the O.P No.1&2  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.1 & 2  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

On being noticed the O.P  No.3 appeared through their learned counsel and filed joint  written version refuting allegation made against them.  The O.P No.3 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No.3. Hence the O.P No. 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

 

 Heard arguments from the learned counsel for the    O.P  No.3 and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set Model No. Samsung  Galaxy A 76  bearing IMEI No.356825/07/611032/9 and No.356850/07/611032/7from the O.P.  No.1  by paying a sum of Rs. 32,200/-  with Retail Invoice No. 105dt.23.02.2016 with  one year warranty( Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately within one month  of its use  the above  set found defective and not functioning  i.e set  hang. The complainant complained to  the O.P No.2 (service centre)  for necessary repair on Dt. 17.3.2016 and the O.P N o.2 has charged towards service chages a sum of Rs.9,000/- (Copies of the  cash receipt  vide sl. No. 547 Dt.17.3.2016  is in the file which marked as Annexure-2).  Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.P. No.2 for replacement or refund of the price of the mobile set   in turn the OPs paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence this case.

            On perusal of the record  it is revealed that  the fact of the  purchase  of Mobile set    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for one year.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   the complainant is entitled to thoroughly  check up  of the mobile set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 1   on payment of consideration  an amount of Rs. 32,200/- on Dt. 23.02.2016 (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after using  some months for rectification of defects handed over the same to the O.P. No.2 (service centre) for repair.

The  O.P. No.3   in their written version  para-2 contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the mobile phone of the  complainant has defect or regarding the manufacturing  defect of his mobile phone or regarding the deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

The  O.P. No.3  in their written version  para-5 contended that it is clearly reflects from the face  of the complaint  of the complainant  that, the complainant  has not come  with clean hands to the forum. He has suppressed all the real  & true facts regarding  his mobile phone. The complainant has  falsely  made the peculiar allegations  against the O.Ps without any proof.   The complainant has better known, what type of defect arose in his mobile phone &why the O.P. No.2 demanded a sum of Rs.9,000/- to make it perfect? If there was  exist of the warranty and the O.P. No.2  the authorised service centre has not given the full  service and the defects still in the mobile  then, whether the complainant paid the said amount to the O.P. No.2 or not ? If on the first instant of repair, the  O.P. NO.2 charged for repair, even if exist of warranty then, 2^nd. time    for which  & why the O.P. No.2 stated  that  “it is a defective  set, sent  by  the company and only the company can do the needful and he can not give the service for inherent manufacturing defects”? Can the complainant prove  it? It is quite impossible to believe  on simple submission of the complainant. The complainant  has not mentioned the type of defect and the date of defect appeared in his mobile phone. Also he has not stated whether he has paid Rs.9,000/- for 1^st. repair within 1 (One) month of the purchase   or not. Also the complainant  has not mentioned on which date he has moved for further service and how much the O.P. No.2 has charged the service charge  against said set for 2 nd. time ?  The complainant has not stated whether the service charge, he paid or not ?   If the O.P. No.2 denied for service for  2^nd time then how he gave the service  further and demanded the service  charge  after all exist of the warranty. The complainant has not submitted any job sheet  nor any cash receipt regarding said services. The burden of proof lies with the complainant, he has to prove his case beyond  all reasonable doubt.  Hence all the allegations &facts  are balled lie.  The complainant has to strict proof of the same.

The  O.P. No.3  in their written version  para-6 contended that in the present case the complainant has purchased the Samsung Galaxy mobile phone from the O.P. No.1 on Dt. 23.2.2016 with one  year warranty   from the date of purchase. After  using the mobile  phone the complainant has made allegation on Dt. 30.6.2016 on vide job No. 4216879502  regarding only to update  the software of his mobile phone due  to hang not for the defect of his  mobile phone. The service engineer of the O.P. NO.2 updated the software of the said mobile phone  in warranty and immediately handed over to  the complainant in OK condition & the complainant has used the  mobile  phone without any allegation. Further the complainant has used the said mobile  smoothly and on dt. 19.11.2016 he has requested the O.P. No.2 on vide job No. 4225823020 for the defect of his mobile and after received  immediately the Service engineer of the O.P. NO.2 has verified the  same and observed that the Octa (LCD & touch screen) was a defect due to  misuse/ mishandle by the complainant. Hence the O.P. No.2 informed  the matter to the complainant immediately and also educated regarding the warranty conditions  of his mobile phone that, for any misuse or physical damage the warranty of the said product will void for said repair only. So that the repair will made by replacing the  OCTA with a  new  spare in out of   warranty, for which the complainant will pay the cost of the new Octa and service charge for the said repair due to physical  damage. After convince by the complainant by the O.P. No.2  has agreed to make repair in warranty  and   the service engineer of O.P. NO.2 has replaced the damage Octa from  said mobile phone of the complainant with free of cost and made it OK. But all of sudden the complainant  has filed this frivolous and  vexatious case before forum without any reason  against O.Ps on 31.1.2017 just prior to expire of the warranty.

The  O.P. No.3  in their written version  para-7 contended that the complainant has suppressed all the real facts  of his mobile phone. It is quite  impossible  and misconceived fact  that, the O.P. No.2 has unable to  remove the defect of the mobile phone of the complainant and stated that the above set  has inherent manufacturing defect.  The complainant has neither  narrated, in which process or on which way he sustained and suffered the same nor produced any evidence regarding  the  same.   It cannot possible to admit the same only simple submission of the complainant.  All  the allegations  of the complainant are balled lie.  If he has no proof whatsoever of the claims made by  him. Hence the complaint is liable to be rejected on this ground alone.

The  O.P. No.3in their written version  para-8   has  mentioned   citation  in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

The  O.P.  No.3 in their written version  para-9   has  mentioned citation i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale of warranty”. The O.P. No. 1 &2  vehemently contended that in this case there is no defect in the  mobile set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.3   and to secure the unlawful gains from the O.Ps.

Another citation  relied by this forum  in the case  of   Stero  Craft   Vrs.   Monotype India  Ltd., New Delhi reported in 2000 NCJ 59(SC) it was held that when terms of warranty does not cover refund or replacement, then consumer can not claim either  replacement or refund during  or after the lapse of warranty period. The terms and conditions of the warranty  of the O.P No.3 are reflected in the warranty  card.  The warranty conditions refers to replacement of spare if the defective spare  satisfy the terms and conditions of the warranty. Therefore the prayer of the complainant can not be granted in favour of the complainant. 

            On the basis of the pleadings of the parties, the sole question of determination is  Whether  the complainant is entitled  relief    made by him ?

On perusal of the documents it is revealed that despite several adjournments taken  by the complainant for the purpose of filing relevant papers, the complainant failed to produce any documents in support of his claim.  When material  facts  pleaded by the complainant in support of his claim have been denied by the  O.P. No.2 to 4  the complainant is duty bound   to substantiate his claim by producing relevant documents there for, but he has failed to do so.  On the basis of mere pleadings of the complainant, which is no evidence, no positive finding can be recorded in regard to his claim. Hence, we are constrained to hold that the petition made by the complainant vis-à-vis  non satisfaction of his relief  is  devoid of any merit.

This forum observed  evidence on record it is concluded that the  complainant miserably  failed to establish his claim before the forum  and hence  the petition is dismissed against the O.Ps. 

In the present case there is no material placed on record to show negligence from the part of this answering O.P.  Here in the instant case the complainant has  not even proved the losses suffered by him

This forum completely agreed with views taken  and the documents filed by the O.Ps in  the present case. Hence  this forum  feel the complainant is not entitled for  any  relief sought for  from this forum and  shall   liable to be dismissed.

However the O.Ps are directed to rectify the defects  of the above mobile set free of cost  if the complainant  approached. to the O.Ps  to rectify the defect of his mobile  set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said  mobile set.

Thus,  it    becomes clear that even on merits, complainant is  not entitled to  any claim.

Hence  to  meet the  ends of justice, the following order is passed. 

                                                                        O R D E R

            In  resultant the complaint petition  stands  disposed off on contest against the O.Ps.

            There is  no order towards cost and compensation.

Dictated and corrected by me.

Pronounced in the open forum on      10th.  day  of    September, 2020.

 

MEMBER                                             MEMBER                                                                                             PRESIDENT