DATE OF DISPOSAL: 14.08.2019
Sri Karuna Kar Nayak, President.
The complainant Manmohan Pattnaik has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased a mobile phone Model No: Samsung GTI9060 for a sum of Rs.10,000/- vide retail Invoice No.36 dated 22.07.2015 from O.P.No.1. The aforesaid phone on 21.08.2015 has become defunct and has been instantly reported to the Samsung authorized service center within its full warranty period and the defunct device has been entered in his service request bill No.4199866210 on the aforesaid date and found that the phone shown “No vibration & set Hangs”. The defect shown in the phone within a month of its purchase. Hence his son has requested the authorized Samsung dealer to replace the same without delay as it has been a defective one but he did not pay any heed to his request rather shown disregard to him. On 6.10.2015 again the same cell phone became faulty and has been duly reported to the same service centre as afore mentioned who has entered his job sheet No. 28 as “Set some times no vibration, internet use time after 1.2 hrs. no service, emergency call showing”. Again on 9.11.2015 the phone became defunct in his job sheet No.43 and found that “Vibrator not working and both the SIM automatically no service then set restart network searching”. Again after some days the same problem occurs on 02.12.2015 and immediately brought to the notice of the service center for rectification, the service center found the defect and entered into his job sheet No. 31 and pointed that “Internet using time network and no service in both the SIM”. Again on 25.1.2016 the phone became un-usable because of “Vibrator not working and calling time, net using time, network automatically no services, set sometimes automatically switched off” which has been detected by the Samsung service center and recorded in the job sheet No.20 on the above date. The complainant issued legal notice to the O.P. on 03.09.2016 but all in vain. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to replace a new cell phone of the same price, compensation of Rs.1,00,000/- towards harassment, professional loss, financial loss, mental agony and cost of Rs.2500/- in the best interests of justice.
3. Notices were issued against the Opposite Parties but the O.P.No.1 neither preferred to appear nor filed any written version as such the O.P.No.1 set exparte on dated 1.6.2017.
4. Upon notice the O.P.No.2 filed version through his advocate. It is stated that the present complaint filed by the complainant is gross abuse of the benevolent provisions of Consumer Protection Act 1986. The allegations in this complaint petition are not genuine in nature. The complaint case is not maintainable since it is based upon false, fabricated, vexatious and misconceived facts. Therefore the complaint petition is liable to be dismissed on this ground alone. The complaint case is not maintainable as the complainant has not mentioned any cause of action and the date of cause of action arose against the O.Ps to file this present complaint. This complaint case is not maintainable since the complaint petition of the complainant was not supported by any affidavit. The law is well settled that, every petition must be supported by an affidavit. The complaint case is not maintainable in as much as the complainant has not impleaded the Samsung Authorized Service Centre (ASC) as a party to this complaint case as the ASC, Bramhapur is appointed to repair all the Samsung Products which caused defect during warranty period or after expire of warranty and also as the complainant has repaired his mobile phone before the ASC, Bramhapur, as such the complainant’s complaint is suffer with non-joinder of parties and knowingly avoid the ASC, Bramhapur to make party only suppress the real story of the alleged mobile phone. The warranty of the alleged mobile phone was expired on 22.07.2016 but the complainant has filed this complaint before the Hon’ble Forum after much more later on 07.11.2016. The son of the complainant has knowingly with ill intension made allegations regarding defect of this alleged mobile phone before the ASC, Bramhapur regularly on each month after purchase. On the job sheets filed by the complainant, the nature of defects was mentioned as described/reported by the complainant. But cleaverly the complainant has stated that the said defects are found by the ASC from his mobile phone, which is absolutely wrong and false. Only to prove the mobile phone was a defective one, the complainant/son of the complainant has made allegations with false problems. But nowhere the complainant has mentioned that after repair, the defect not removed. Even if after last allegation made on 25.01.2016, the complainant has not stated on his complaint that after repair on 25.01.2016 the defect was not removed from mobile phone which proves that no defect has continued on his mobile phone since 25.01.2016 till filing of this case i.e. 07.11.2016. Then how will prove/presume that the alleged mobile phone is a defective one. The complainant has not come this Hon’ble Forum with clean hands. The complaint has suppressed the true/real facts and supper added some unbelievable, misconceived and after thought facts to establish his allegation as well as his prayer, as the complainant is an advocate. The complainant has coloured his complaint and the letter dated 08.09.2016 with misconceived facts which are unbelievable and quite impossible. The complainant has created the story in dramatic style as if it is a defective one. The submission of the complainant is not only unbelievable but also quite impossible and misconceived. It is quite impossible to believe on simple submission of the complainant. The complainant has put to strict proof of the same. The law is well settled that the burden of proof lies with the complainant. The averments of the complaint petition are also wrong, baseless, false, misconceived, unfounded, fabricated, frivolous and concocted and hereby denied. Because the warranty conditions clearly refers for replacement of defective spare only not for replacement of the whole product. In view of above facts and circumstances it is clear that the complainant has filed this false, frivolous and fabricated case in oblique motive and malafied intention just prior to expire of the warranty period of his mobile phone without getting any mental agony and harassment on behalf of the O.Ps and only to tarnish the reputation of O.P.No.2 and to secure illegal and unlawful gains from the O.Ps. Hence the complainant is not entitled for any relief prayed in the complaint petition and thus the complaint of the complainant may dismissed for such a false case with heavy cost in favour of the O.P.No.2 against the complainant.
5. On the date of hearing of the case, we heard the learned counsel for the O.P.No.2 as since long the complainant (advocate) was absent. We perused the complaint petition, written version, written arguments and materials placed on the case record. It reveals that inspite of notice to the complainant by the learned Forum vide letter No.406 dated 26.06.2018 for filing evidence on affidavit but he did not file his evidence on affidavit. But it reveals from the record that for repairing the defective mobile the complainant has deposited his mobile in Samsung Service Centre in several times within the warranty period and to that effect job sheets have been filed by the complainant. It also pertinent to mention here that as the complainant’s mobile repeatedly found defective as such the complainant being an advocate issued notice to O.Ps but the O.Ps did not respond.
6. On foregoing discussion, and for the interest of justice, we hold that there is deficiency in service on the part of the O.Ps.
In the result, the complainant’s case is partly allowed against the O.Ps. The O.Ps are jointly and severally liable as such they are directed to repair the complainant’s defective mobile set in free of cost with fresh warranty within “45” days from the date of receipt of this order or in alternative to pay the cost of mobile set i.e. Rs.10,000/- to the complainant. In peculiar facts and circumstances of the case no compensation and cost awarded.
The order is pronounced on this day of 14th August 2019 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
