Sri Partha Kumar Basu, Hon’ble Member :
The complaint case has been filed u/s 35 of the Consumer Protection Act, 2019 against the OPs for deficiency in service and adopting unfair trade practices in a matter of dispute regarding repair of mobile handset.
The facts leading to the present complaint are that the OP1 is the manager of the service centre of the Mobile Manufacturing and Marketing Company and OP 2 is the office bearer of the said mobile company. The complainant deposited on 30.06.2022 one Samsung Galaxy J3 Pro model mobile handset with a 0.5” broken display at the upper part but in operating condition at the service centre of OP1. It is the case of the complainant that during depositing the handset, it was unlocked by the complainant and handed over to the staff of the service centre in working condition, when the service centre recorded that the upper portion of the display of the handset as partly broken. The service centre acknowledged the service request but did not provide any details or description of the equipment except that they only issued an advance slip dated 30.06.2022 in favour of the complainant for a total amount of Rs.2500/- and a part of it was paid by the complainant for Rs.1500/- as advance. The Complainant got message on 01.07.2022 that the repair work under progress, parts in transit with a service request no. 4350624038 date 30.06.2022. Subsequently on 02.07.2022 the complainant got a call from service centre intimating him that the battery being not in good condition needs replacement to which the complainant denied. Same day the complainant got another call from service centre stating that mother board of the handset required replacement. It is the case of the complainant that while in their custody at service centre, the mobile handset was damaged in respect of the battery and mother board due to mishandling by their unskilled technician at their service centre. In spite of repeated requests from the complainant the OP did not pay any heed to the written complaint dated 05.07.2022 that was sent to the service centre with a copy to the OP 2 Company. The complainant downloaded the tracking status from the company portal about the handset online which showed the status of the device as “device repaired”. The complainant alleged that the OP Company removed / deleted the PDF file from their website regarding the said track repair status intentionally to prevent the complainant to enable him to collect any evidence. It is the case of the complainant that though the handset was received by the OP service centre in good working condition with evidence of being only broken externally for around 0.5”, which also could be unlocked by the complainant and handed over to service centre staff, then the issue of battery damage and mother board replacement would have not occurred. Subsequently the complainant contacted office of the OPs but they refused to repair the mobile. In this way the opposite parties are deficient in rendering service. Due to the acts of the opposite parties, complainant has suffered physical and mental harassment. Hence the present complaint is filed seeking the reliefs for return of his mobile handset after restoration along with a compensation of Rs.1,00,000/- for harassment and mental agony and a litigation cost of Rs.15,000/-. In support of his claim, the complainant exhibited the advance slip no 15 dated 30.06.2022
The OP 1 and OP 2 filed their W/V separately. Questionnaire and replies were exchanged. The Ld. Lawyers of complainant was present on the day of final hearing and filed BNA. OP2 filed BNA. The W/V of the OP1 was treated as BNA as per their submission.
In the written version filed by OP1, preliminary objections were taken firstly that complainant is not entitled for any relief as he has concealed the true and material facts. The complainant has not come to the commission with clean hands and the allegations are fabricated and products of afterthought. It is submitted that handset serial no SM-J320FZKGINS in question was found to be 'physically damaged' after the internal inspection by OP1. As such, the handset is not covered under warranty and repair was on chargeable basis. In W/V OP1 alleged that complainant concealed the date of purchase by not exhibiting invoice, which would have proven that the warranty been expired. The estimate of repair for Rs 2500/- dated 30.06.2022 is an approximation subject to final estimate after thorough check up. But the final repair cost which included replacement of Battery and PBA (mother board) was given to the complainant that was not approved by him. The handset was thus returned to the complainant on 02.07.2022 without repair. As per the terms and condition of the warrantee card it is covered for only 1 year which since expired in this case.
The OP2 OEM company filed W/V in similar line to OP1 with additional contents that the complainant has not sought the permission of this commission u/s 34(2)(b) of the CP Act 1986 before instituting the complaint against the opposite party as the office of the OP is not situated within the territorial jurisdiction of this commission and hence institution of complaint is not tenable in the eye of law. They stated that present complaint is liable to be dismissed as it is gross abuse of process of law and is based on false, frivolous and baseless allegations. It is also contested that the handset in question has been physically damaged by the complainant by his own negligence who is trying to take benefit of his own wrong. The obligation of the opposite party under warranty is subject to warranty terms and conditions as mentioned in the 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 but in present case the mobile has been mishandled as the parts of the handset were found to be damaged. In para II (m) page (7) of the W/V the OP2 states that the complainant has not produced his handset for inspection without which it was not possible for OPs to repair the handset. It was also claimed that the complainant has not set out any legitimate ground entitling him for replacement of the mobile phone with damages and litigation costs. The complainant has neither alleged any specific documentary evidence nor arranged to determine the alleged defects with proper analysis or tests of the goods u/s 38(2)(c) of the CP Act 1986. In the absence of any expert evidence the claim cannot be allowed. The complainant has not produced any technical expert report. The OP-2 OEM denied having any manufacturing defect. The OP-2 also contested in Para-10 of their W/V that in case of allegation of any defective goods the same cannot be determined without proper analysis or testing of the disputed goods obtained under said and authenticated condition of determination of the defects at the appropriate laboratory. Therefore, in absence of an expert opinion, the allegation of the handset not working properly, could not be determined. The OP-2 also stated that not only the warrantee governed by the terms and condition as mentioned in the warrantee card but also the same will be considered to be out of warrantee coverage like by repair through 3rd party, physical damage etc. as detailed in Sl. 11 of their W/V. The OP-2 also cited the copy of warrantee card (Page 13-24) in that respect. The OP2 stated that the complainant has not provided any supporting evidence about the invoice / purchase date on which their entire cause of action is standing upon. Even if the OP 1 is not required to repair the mobile free of cost still, the requirement of replacement of battery & PBA was intimated to the complainant after checking the handset with new display to sustain the defects of the device. Lastly, the complaint is misusing the process of law. No cause of action has arisen in favour of the complainant.
In order to prove his case, the complainant has tendered one advance slip dated 30.06.2022, acknowledgement of service request dated 30.06.2022, repair estimate of OP1 dated 10.08.2022, copy of legal notice dated 05.07.2022 and 22.07.2022 that was returned ultimately without repair on 02.07.2022, reply from OP1 dated 19.07.2022 and 25.07.2022 and 25.08.2022 denying allegations and claiming requirement of PBA (mother board) and battery replacement on chargeable basis & a ‘track repair status extract showing the status as “your device has been repaired” for the said service request no SM-J320GJKGINS (4350624038) with mention of list of defects as Physical damage, Broken screen & LED not working (Annex 1 to 8).
To rebut the case of the complainant, the Opposite Parties tendered evidence on affidavit alongwith copy of standard warranty condition and card (Annx A page 13-24) only and closed the evidence.
We have heard the learned counsel for the parties and have gone through the written arguments and records. The contentions of both OP1 and OP2 are taken up together for the sake of brevity and to avoid repetition.
It is observed that both the addresses of the service centre as well as the complainant are falling under the geographical jurisdiction of this District Commission. Hence the objection of OPs on this ground is untenable. The OP-2 has also alleged that the complainant failed to add the OP-1 service centre as a necessary party. This allegation is also not tenable as the complainant has already made the OP1 service centre a party as OP, in his complaint petition.
It is the admitted position of complainant that warranty period for the mobile in question is of one year while his handset is four years old. But the OP1 and OP2 has unnecessarily saddled the dispute assuming warranty claims of complainant, though no such claim lies on warranty by the complainant in the four corners of his petition. Hence all the deliberations brought in by the OPs on account of warranty are uncalled for.
The moot point of the complainant is that the mobile phone was having no problem of mother board and battery, since the same was neither a fact nor recorded so in the advance slip. In the Annexure C from the complainant, under the heading ‘repair description’ in the ‘acknowledgement of service request’ dated 30.06.2022 depicts the remarks with manuscript note - “but net slow. So need both Octa + PBA” (mother board) (needs to be replaced). Upon inspection of the handset, the description about the defect during depositing handset as per document generated by OPs do not match with this ‘service request report’. The repair was on chargeable basis, but the complainant refused to get the handset repaired on escalated charge basis for an amount of Rs 7132.82 as per estimate dated 10.08.2022. The complainant also filed invoice showing original purchase price as Rs 6190/- dated 12.10.2018. Though it is submitted by OPs that they are only liable to repair the product on chargeable basis but the complainant challenges the escalated amount of charges contesting the genuineness of the requirement of replacing the PBA (mother board) and battery. Here the first point to be determined is whether the mobile in question is having manufacturing defect as resisted by OPs and, therefore, it is liable to be replaced with a new one or to refund the price of the said mobile. But the complainant never complained about any manufacturing defect. The Job Card shows that the complainant approached the Opposite Party Service Centre for repairing his mobile on 30.06.2022. But the OPs contested that in the absence of expert evidence, replacement cannot be allowed. Moreover, it is further submitted that it is the legal duty of the complainant to establish the same by technical / expert report. There is no dispute that the complainant has given the mobile set to the OP1 for a defect as per preliminary observation. Though the onus to prove that the mobile set having defect lies with complainant which he has failed to produce, but in absence of the same there is no bar to rely upon other documents and exhibits in absence of expert report or any job card or service details, to ascertain the actual defects..
In the case of , I (2004) CLT-855 the principle of law laid down was to the effect that the OEM could not be ordered to replace or refund equipment, merely because some defects appear, which could be rectified. On the basis of the above discussion and citation, as referred to above, this commission is of the view that the complainant is unable to prove absence of estimated defects, therefore, the OP2 original equipment manufacturer is not under obligation to replace the said mobile in question.
Now the question arises whether the said mobile is liable to be repaired, to make it in a working condition free from any defect and role of the OP1 service centre.
The said mobile set was sent for repair with partial defect and there is no quarrel about that. The perusal of record shows that in Job Card the OP2 mentioned that some additional damages on mother board and battery, came to their notice upon internal inspection. However, the opposite parties have not placed on record any such inspection report or document to establish the same. In the question reply also the OPs have failed to reply or justify the basis of the ‘Track Repair Status’ dated 30.06.2022 which clearly stated that the defects on that date i.e. the day the handset given to OP1 service centre is limited to “physical damage, broken, screen and LED not working’ that has since been repaired as per quote on ‘repair status’ which is read as “Your Device has been repaired”. The OP2 is conspicuous in their reply to the questionnaire of complainant in that respect as per Sl no Q (16) stating that “I have already explained about the track repair status”. But upon examination of records such claim is unfounded at any other record of OPs. Neither OP1 has ever addressed this query of the complainant at any stage. Moreover the ‘acknowledged service request’ dated 30.06.2022 (Annx C from the complainant) appears to be system generated, being the OP2 company a reputed one having adequate backend procedures, but the hand written manuscript note - inserting the ‘service description’ mentioning replacement requirement of PBA and Battery by the OP1 service centre - is very much doubtful specially in the light of tracking report status as ‘“device repaired’ , which appears to be an afterthought remarks inscribed manually in a system generated report by the OP1 service centre.
So keeping in view the nature of the evidences produced by both the sides, it can’t be held beyond doubt that the handset in question was not already in repaired status by OP1 as on 30.06.2022 itself that was inflated with a final estimate with additional imaginary items like Battery and PBT (motherboard).
Hence, it is,
ORDERED
That the instant case, be and the same, is allowed against OP1 and dismissed against the OP2 on contest. Keeping in view the peculiarity of the circumstances there is no order as to costs or compensation.
The present complaint succeeds in part to the extent that the OP1 is directed to repair the mobile in question of the complainant with genuine spare parts of the OEM to make it in working condition OR refund the original invoice price of Rs 6190/- (Rs. Six Thousand One Hundred Ninety) only to the complainant within the period of 45 days from the date of this order. The complainant is also directed to visit the OP1 service centre of the opposite parties to get the needful done.
This order will be complied with within 45 days from the date of this order failing which the refund will be payable by the OP1, alongwith a simple interest @ 12% per annum, from the date of filing of the complaint, I/D complainant shall be at liberty to file execution case for the decreetal amount.
Copy of this order be supplied to the parties free of costs as per CPR.
The file be consigned to the records.
That the final order will be available in the following website www.confonet.in.
Dictated and corrected by me.
(Partha Kumar Basu)
Member
