ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.103/2016

                       Date of filing: 24/02/2016

                                                                                                              Date of disposal: 10/05/2018

P R E S E N T :-

- V/S -

JUDGEMENT

By  Smt. J.S. Kajagar, Lady Member.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to replace the Mobile Set No.S-7102 Grand II Samsung with new one having its warranty and pay compensation of Rs.25,000/- towards inconvenience and mental agony alongwith cost of the proceedings and any other reliefs.

2.      The facts of the case in brief are that;

          The case of the complainant is that, the complainant has purchased Samsung Mobile Set bearing No.S-7102 Grand II Samsung, Bach:352116065631812 from the Op.No.3 on dtd: 22.04.2014 for Rs.21,900/- manufactured by OP.No.1 and it was warranty for the period of 1 Year. After purchase of the handset, on dtd: 17.03.2015 it started giving major problems of various nature and was not rendering proper services to the complainant and there were complaints about software update and make and also display problem and further the complainant has approached the OP.No.2 for getting it repaired and OP.No.2 repaired the said mobile set and rectified the problems, after 3-4 days the same has returned to the complainant. But, unfortunately after about one week, the said mobile set was not at all giving proper services it was affecting from LOGO HANG problem, it was not fit to use and further on dtd: 02.04.2015, the complainant was force to handover the mobile set to OP.No.2 to find faults and to repair it properly, but OP.No.2 returned the said mobile set to the complainant and stating that, there are no such problems in the said set. Inspite of it as the said mobile set was not at all rendering services and complainant has kept the said mobile set to the OP.No.2 and further on dtd: 12.04.2015 the complainant has approached and requested to the OP.No.2 for repair the said mobile handset, but it went in vain till today. Thus, it is clear that, the OP.No.1 & 2 are adopting dilly-dally tactics in handling the mater for expiry of warranty period and it seems that, the said mobile set is kept by the OP.No.2 with it unrepaired. As the mobile set has been handed over to the OP.No.2 during its warranty period for its repairs and as the same has not been returned to the complainant after its due repairs and the same is amounts to deficiency of service on the part of the OPs. 

          Finally, the complainant has issued a legal notice to the OPs on dtd: 06.05.2015. The said notices were duly served to the OPs, but the OPs have neither replied nor complied with the said notices. Thereafter, the complainant again second time issued the notices on dtd:20.10.2015 to the OPs, even after service of notice, the OP.No.1 & 2  neither complied the same nor they have replied and OP.No.3 has given a false and evasive reply to the said notice. But till today, the OP.No.1 & 2 have not turned up. Therefore, the complainant has suffered heavy loss and damage and sustained mental agony. Hence, the complainant has constrained to file this complaint.

3.      After receipt of said notice to the OPs, the OP.No.1 & 3 have appeared through their counsel and resisted the claim of the complainant by filing their written version and Op.No.2  notice was duly served. But, the Op.No.2 has not appeared. Hence, OP.No.2 placed ex-parte and the Op.No.1 contended that, the complaint is not maintainable since it is filed after expiry of warranty period and denied all allegations made out in the complaint about deficiency in service in not delivering the said mobile handset and further the Op.No.1 denies the allegation that, the device is handed over during warranty period. In fact, the said allegation is contrary to job sheet dtd: 02.05.2015 and other allegation of the complainant regarding repair mobile as well as failed to return in time does not arise since as on 12.04.2015 the complainant never visited the service centre nor deposited his device for service purpose and further contended that, the complainant has approached the service centre last time only after expiry of warranty period and not prior to expiry of warranty period.

          It is further contended that, after receipt of the device on 02.05.2016, the service centre upgraded software free of cost and latter made through check-up. However, they could not found Logo Hanging Problem or any other major issues as alleged by the complainant and further the service centre duly intimated the complainant to collect his device. However, instead of collecting the device, the complainant demanded and insists for replacement of new device without any justification and further there is no justification in demanding replacement of new device that too after expiry of warranty period is not considered by OPs, since the complainant mobile is in good working condition, now the complainant twisted the situation to suit his convenience and contended that, his device is not repairable as well as it is lying with the service centre since 12.04.2015 and further contended that, when the complainant device does not persist with any malfunction as well as failed to collect it from the service centre even after due intimation as well as providing free of cost software work, how OPs are responsible to meet the unlawful demand of the complainant that without any latches from Ops. Hence, the Op.No.1 has prayed for dismissed the complaint with costs.  

          OP.No.3 filed written version and denied all allegations made out in the complaint and contended that, the complainant has approached after completion of the warranty period and it also reveals that, the complainant has issued a notice to the OP.No.1 & 2 wherein the name of this OP is not appeared and again after several months, the complainant has issued a legal notice to all the OPs, this itself is very clear that, the OP.No.3 has unwontedly involved in this complaint and complainant has specifically pleaded in his complaint that, this Op has made as formal party and there is no claim against this OP. However, this OP is filing this objection to avoid the technical flaws and further contended that, he is dealing the sales of mobile phones of various brands including S-7102 Grand II Samsung and further contended that, each and every such transaction is concluded/ completed only after the customer signifies that, he has clearly understood that, the guarantee/warranty is given exclusively by the manufacturer-company alone and not by this OP who is merely a seller. Thus, the manufacturer company’s local Authorized Service Center i.e. OP.No.2, which has trained technicians/experts who would be obliged to give appropriate after sale service to the complainant and further contended that, only the manufacturer company’s said authorized service center is ‘authorized’ to repair/replace the mobile phones in case any complaint is found to be genuine and OP.No.3 is not liable either to repair/replace the mobile handset purchased by the complainant or to pay any compensation and the question of deficiency of service on the part of the OP.No.3 does not arise. Hence, the OP.No.3 has prayed for dismissal of the complaint with cost of Rs.10,000/-

4.      Both parties have filed their affidavit in support of their case, on behalf of complainant has produced 12 documents,  which are marked as Ex.P-1 to Ex.P-12. On behalf of the Op.No.1 has produced 4 documents, which are marked as Ex.R-1 to Ex.R-4, for sake of our convenience, we have marked P & R series. The adv. for complainant and OP.No.3 have filed their written arguments and complainant has argued the matter and oral argument of OP.No.1 & 3 taken as heard.           

Now, on the basis of these facts, the following points that would are arise for our consideration;

1. Whether the complainant has proved that, there is negligent and deficiency of service on the part of Ops for not repair the Mobile handset?

2. What order?

5.     Answer to the above Points:-

1. Partly in the Affirmative.
2. As per final Order.

R E A S O N S

6.      Point No.1:- After perusing the evidence of both parties and scanning the written arguments, no doubt it is true that,  the complainant has purchased the Samsung Mobile Set bearing No.S-7102 Grand II Samsung, Bach:3521160 65631812 from the Op.No.3 on dtd: 22.04.2014 for Rs.21,900/-, which is not in dispute. It is also not in dispute that, the complainant is a consumer as is defined under the provisions of the C.P. Act 1986.

          After few months of purchased the said mobile handset giving problem towards software update and also display problem, the complainant has approached the OP.No.2 for the same and the OP.No.2 made repaired and return to the complainant and again the said mobile handset giving problem towards LOGO HANG for the said purpose, the mobile handset is still lying with the OP.No.2 since from 02.04.2015 and requested to rectified/repair the defect and return the mobile handset, in order to prove the said contention, the complainant has filed affidavit alongwith supporting document i.e. Job card and within warranty the said handset was repaired by the OP.No.2 that itself shows that, mobile is not proper working and the same has been not rectified by the OPs. It is evident that, the complainant has given handset for repairs, but, the Op.No.2 did not rectified/repaired the said mobile handset. Hence, in our consider view that, the complainant established his case as alleged in the complaint as well as affidavit evidence by producing material document i.e. Mobile purchase receipt and job cards.

            The specific case of the OP.No.1 & 3 that, the said handset is not covered under the warranty as per the terms of warranty, there is no any condition to repair or replace the handset which is not covered under the warranty as per the terms of warranty as the product lies outside the scope of warranty and after going through these contentions of the written version and evidence of OP.No.1, the said contention contended in the written version which is not acceptable and it has no evidentiary value and now the OPs without any base or fault of the complaint raised untenable grounds  before this Forum, which is against the principle of nature justice and law, when the job sheet reveal and mentioning that mark in display & software, battery backup and logo hang problem. When such was the situation then how the OPs raised objection regarding warranty, as such the said defect is occurred before expiry of warranty, does it not sufficient to hold that, there is defect as alleged in the complainant? It is crystal clear to shows that, the intention of the Ops to avoid to repair/rectified the said mobile hand set, therefore in our considered view there is deficiency in service on the part of OPs towards not rectifying the said problem or defects, though, the said product is not to that standard quality as mentioned in the warranty. 

           Further the OPs contended that, as per the terms and conditions of the warranty mentioned on its product and it cannot be held liable for claims falling outside the scopes of the warranty, for that proposition except pleadings and there is no any material documents to show that, the problem in the mobile hand set is out of warranty. The complainant has given complaint regarding the said problems, and approached to the OP-2 checked  and issued job sheet but whether it is correctly rectified or not? In our considered view that, initially the mobile hand set itself is having defects towards as alleged by the complainant which has been not repaired properly by the OP’s service engineer, therefore the said handset still lying with OP.No.2 and same has been not denied by the OPs. It shows that in our considered firm opinion that, the mobile handset itself is in defective condition towards functioning proper, thereby the act of the Ops amounts to deficiency in service.  The contention of the OPs that, the said handset got problem out of warranty is not proved by the OPs.  Hence the OPs have failed to prove that, the said mobile handset was out of warranty.  

           Therefore, in our consider view that, the attitude of the Ops shows that, the Ops have not rectified the problem which is caused to the mobile handset. Under such circumstances, the said acts of the Ops are negligent and deficiency in service on the part of the Ops as not rectifying the handset mobile, though the handset is under still warranty period i.e. within one year from the date of purchase.  However, the duty of the OPs to repair the handset as per terms and conditions of the warranty.

It is bounded duty of the OPs, when the handset get defective within warranty period irrespective of internal or external cause. Moreover, the complainant has proved his case towards handset given for repairs, it revels in the Job sheet issued by the OP.No.2, since from beginning when the complainant given handset for repair purpose, the OP.No.2 did not return the said hand set which is prima-facia shows that, the Ops sold handset was in defective and not working properly since from beginning itself.  Therefore in our considered opinion that, there is deficiency in service on the part of the Ops towards not rectifying the problem as alleged by the complainant, it would be proper, directed to repair/rectified the said problems of the mobile handset without any cost and further we directed to Ops are jointly and severally to pay the compensation of Rs.1,000/- towards litigation expenses. Hence, we answer to the above point No.1 in affirmative.  Accordingly, we proceed to pass the following;

O R D E R

   For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act 1986 is partly allowed.

The OPs jointly and severally are directed to repair/rectified the problem of the mobile handset of the complainant within 10 weeks from the date of this order.

Further the OPs jointly and severally are directed to pay Rs.1,000/- towards costs of the proceedings.

          (Order dictated, corrected and then pronounced in the open Forum on: 10^th May 2018).