This is a case under section 12 of the Consumer Protection Act 1986 filed by the complainant Smt. Shipra Choudhury Banik against the O.P. The Proprietor/Manager, JP Communications (Authorised Samsung Service Centre) at Kamarpara (near Vishal Mega Mart), P.S.- Kotwali, P.O. & Dist.- Japlaiguri, and another for replacing Samsung Galaxy J7 Prime Mobile Phone from the O.P.s’. It has been stated that Samsung India Electronics Private Limited has its Registered Office at C.P.T. Colony, Taratala, Kolkata, West Bengal, Pin- 700088. The O.P. JP Communications (Authorised Samsung Service Centre) at Kamarpara (near Vishal Mega Mart), P.S.- Kotwali, P.O. & Dist.- Japlaiguri, is Authorised Service Centre and the O.P. Mobile Park, authorized sale centre of Samsung Branded Mobile. The complainant has purchased Samsung Galaxy J7 Prime Mobile Phone bearing IMEI No. 351678/09/086226/7 & IMEI No. 351679/09/086226/5 from Proforma O.P. Mobile Park on 09.02.2018 with warranty of one year (till 08.01.2019) at a price of Rs. 13,900/-(Thirteen Thousand Nine Hundred Only) ((Tax Invoice Dated 09.01.2018)
After few days of purchase it has been found by the complainant that display of said Mobile Phone started fading out and finally the display had no light at all. On 03.01.2019 the complainant went to the Authorised Sale Mobile Park and defect of Mobile was being shown. At the instance of the O.P. a Job Card was filled up and the Mobile Phone of the complainant along with the battery was received by the O.P. for necessary repairs and asked the complainant to check after a week. Mobile Phone under reference was within warranty as on 03.01.2019.
The complainant went to O.P. on 16.01.2019 and found that they did not repair the mobile. But the O.P. has raised a sum of Rs. 177/- towards an estimate for the necessary repair and asked the complainant to come back on 19.01.2013.
Thereafter, the complainant on 19.01.2019 went to the O.P. JP Communication, but he was handed over estimate amounting to Rs. 12,999/- (Twelve Thousand Nine Hundred Ninety Nine Only) towards the cost of repairs of the mobile phone lying with the O.P. JP Communication since 03.01.2019. The O.P. JP Communication despites looking warranty period has illegally charged said amount from the complainant. The complainant on 01.02.2019 sent notice through the Assistant Director, Consumer Affairs & Trade Fair Practices, Jalpaiguri, Regional office calling upon the O.P. not to charges levied upon the complainant for repair of the mobile phone which was within warranty period. Said case was posted on 19.02.2019. Notice was duly delivered to the O.P. JP Communication, but they did not appear without any reason. The O.P. JP Communication is indulged in unfair trade practice because the O.P. JP Communication has charged repairing cost of Rs. 12,999/- (Twelve Thousand Nine Hundred Ninety Nine Only) for Samsung Mobile purchased by the complainant within the warranty period.
Therefore, they have made out case against the O.P. praying for direction upon the O.P. JP Communication to repair the Mobile Phone of the complainant without charging cost of repairs.
Further, they have claimed that the O.P. be directed to pay an amount of Rs. 50,000/- (Fifty Thousand Only) for unfair trade practice. Also the O.P. be directed to pay a sum of Rs. 10,000/- (Ten Thousand Only) for harassment cost to the complainant and to pay a sum of Rs. 50,000/- (Fifty Thousand Only) towards litigation cost and other reliefs.
It reveals from the documents issued by Mobile Park, Babu Para, Jalpaiguri that the complainant has purchased the Samsung Galaxy J7 Prime Mobile Phone on 09.01.2018 at price a sum of Rs. 13,900/- (Thirteen Thousand Nine Hundred Only). Annexure 2 of the said complaint clarifies that there was full warranty of the set model of Samsung Galaxy J7 Prime Mobile Phone. It was purchased on 09.01.2018. There is defect found by the Samsung Authorised Service Centre (JP Communication) in Mobile Set. The Mobile Set is dead. Despite tried 30 minute charge was given in mobile in Service Centre but no charge is being found in battery.
Besides that Samsung Service Centre has received the mobile set on 03.01.2019. On 16.01.2019 they have charged a sum of Rs. 177/- (One Hundred Seventy Seven Only) from the complainant which was paid to the Service Centre. Significantly JP Communication being authorized Samsung Service Centre, Kamarpara, Jalpaiguri has charged a sum of Rs. 12,999/- (Twelve Thousand Nine Hundred Ninety Nine Only) on 18.01.2019.
Further documents itself speak that the complainant Smt. Shipra Choudhury Banik lodged a Written Complaint against the O.P. JP Communication Aothorised Samsung Service Centre, Kamarpara, Jalpaiguri for sorting out the grievance in relation to Samsung J7 Prime Model Mobile.
The Assistant Director, Consumer Affairs & Trade Fair Practices, Jalpaiguri, by its letter dt. 01.02.2019 has directed the Proprietor of JP Communication (Authorised Samsung Service Centre) Jalpaiguri to attend on 19.02.2019 for tripartite meeting. But the O.P. did not respond to that letter. The complainant through his Advocate Sri Arup Ratan Choudhuri has sent a letter to the Proprietor/ Manager JP Communication (Authorised Samsung Service Centre) Jalpaiguri. After that they have filed C.C. No. 11/2019 before the District Consumer Disputes Redressal Forum, Jalpaiguri. In reply to the said letter the Proprietor/ Manager JP Communication (Authorised Samsung Service Centre) Jalpaiguri stated that they are providing service to Samsung Mobile Phone which was mentioned in the letter of the Ld. Advocate and an as such they are not in a position to answer as to why charge has been made against the complainant for repairing the mobile within warranty period. They have repaired Samsung J7 Prime Model Mobile of the complainant and as such they have charged the amount.
The O.P. J7 Communication said that if the Mobile Set brought to them within warranty period, cost shall be borne by the company but if the hand-set brought within the warranty period or the customer does not fulfill the terms and condition as mentioned in the warranty then the company shall not be liable to pay the said cost of the repairing. After receiving handset they open it for repairing, to upload photography to inside and outside of said mobile set at the company portal. After examination said photography it is found that mobile set has not fulfilled condition of warranty and as such Mobile Samsung Company shall not take liability and responsibility to pay repair cost. Mobile Set was tampered before the same was brought to the O.P. JP Communication. The manufacturer company is answerable about the Mobile Set.
Having regard to the evidence-in-chief of the complainant and brief notes of arguments filed by the complainant this Consumer Forum is of view that Samsung India Electronic Private Limited, having its Registered Office at C.P.T. Colony Taratala, Kolkata, Pin- 700088 is the manufacturer of Samsung J7 Prime Mobile which was purchased by the complainant on 09.01.2018. It is admitted fact that the Mobile Park is Authorised Dealer to sale Samsung Branded Mobile.
Therefore, the O.P. Proprietor/ Manager JP Communication (Authorised Samsung Service Centre) at Kamar Para, Jalpaiguri has claimed to have no obligation to repair mobile set within warranty period and cost be borne by customer. No cost shall be charged upon the complainant for repairing different parts of mobile.
As prayer Maxim of Torts the O.P. Proprietor/ Manager JP Communication being Authorised Samsung Service Centre has vicarious liability to repair the defective Samsung Branded Mobile Set of the complainant purchased from Authorised Dealer Mobile Park.
The Samsung India Electronic Private Limited has jointly and/ or severally liable and accountable with the O.P. JP Communication to replace and/ or to repair the Mobile Set purchased by the complainant at free of cost within warranty period. The amount charged by the O.P. JP Communication is not liable to be paid by the complainant. But at best the Samsung India Electronic Private Limited is liable to pay charge amount in respect of said mobile to the O.P. JP Communication. But the complainant shall not pay single penny for repair of mobile set.
Law of equity says that equity will not suffer wrong where there is remedy It is illegal act of the O.P. JP Communication in writing claiming cost of repair of the Mobile Set purchased by the complainant. Rather such matter should have taken up with the Samsung India Electronic Private Limited, Kolkata. When the O.P. JP Communication denies its liability and/ or responsibility then the Samsung India Electronic Private Limited is held responsible to replace the Mobile Set. If the Samsung J7 Prime Model Mobile is available with the company then the same shall be handed over to the complainant Smt. Shipra Choudhury Banik. But if that model is not available then new upgraded version higher than the amount of purchase of Samsung J-7Model be given to the complainant Smt. Shipra Choudhury Banik due to having defect in the display of android mobile phone and no light in display of mobile is being found.
The Samsung India Electronic Private Limited shall take action against its Authorised Dealer JP Communication for charging amount illegally from the complainant for purpose of repair of Samsung J7 Prime Model Mobile Set. Section 14 of the Consumer Protection Act provides that the District Forum has power to direct the Samsung India Electronic Private Limited to replace the defective set with new goods of similar description which shall be free from defect. Also District Forum has been empowered under proviso to Section 14 of the Consumer Protection Act to grant punitive damage, if the Company fails to comply with the direction of the District Consumer Disputes Redressal Forum. Jalpaiguri. Maxim of law of Torts “Respondent Superior” shoulder responsibility upon the Manufacturing Company to replace the mobile set in case of failure of the O.P. JP. Communication fails to repair mobile set within warranty period. Law of Equity looks to the intent rather than its form.
In the result the case succeeds.
According it is
O R D E R E D :
That the case be and the same is allowed. The Samsung India Electronic Private Limited its Having Registered Office CPT Colony, Taratala, Kolkata, Pin- 700088 is hereby directed to give a new set of Samsung Branded J7 Prime Model Mobile Phone to the complainant Smt. Shipra Choudhury Banik wife of Sri Kashi Nath Choudhury within one month from the date of communication of this order due to inherent laches and negligence of its Authorised Dealer JP Communication, Jalpaiguri. In the event of failure to deliver Samsung J7 Prime Model Mobile alternatively upgraded version having value more than value of Rs. 13900/- (Thirteen Thousand Nine Hundred Only) be handed over by the Samsung India Electronic Private Limited otherwise both Samsung India Electronic Private Limited and the O.P. JP Communication will be jointly liable to pay punitive damage @ Rs. 100/- per day till the date of the delivery of Samsung Mobile Set as stated hereinbefore.
Let a copy of this order be sent by speed post to the Officer-in-charge of Samsung India Electronic Private Limited having its Registered Office CPT Colony, Taratala, Kolkata, Pin- 700088 by speed Post at the cost of District Consumer Disputes Redressal Forum, Jalpaiguri.
