SMT. BANDANA ROY, PRESIDENT
Brief history of the complaint case is that the complainant purchased a new Samsung G935fZDUINS S7 EDGE 357327072158302 mobile at Rs. 50,000/- from the OP no1 on 15.09.2016 with warranty for one year from the date of purchase. The OP no. 2 is the manufacturer of the said mobile phone. The complainant used the mobile set for few months but from the last part of May 2017 the said phone occasionally hanged and net connection jeopardized and also some other setting problems. The complainant handed over the set to the Service Centre of the OP No. 2 at Chaitanyapur for repair on 01.06.2017 and on the same date they returned it to the complainant after repair. After few days the set had the same problem as before. Again the set was settled for repair by the said Servicing centre but the result unchanged. Thereafter the complainant made contact with the OP.NO. 2 for proper redress, but they remained mum.
Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service on the part of the OPs.
Summons were issued upon both the OPs, OP no. 2 appeared and contested the case by filing written version but OP no 1 did not contest the case. So, the case is heard ex parte against the OP no.1. The OP no 2 has prayed for dismissal of the complaint as it is baseless, devoid of merits harrassive, frivolous, speculative and so so.
The specific defense of this OP No 2 is that this Forum lacks jurisdiction to try this complaint as the registered office of this OP is at DLF PH V Gurugram, Haryana 12202. The complainant has only made a verbal allegation of defect in the Mobile set, but it not based on any expert opinion or technical report. This OP states that there was warranty for the set for one year from the date of purchase. The warranty covers only the defects in product arising out of manufacturing or faulty workmanship within the warranty period. The OP no. 2 admits that the complainant took the said set to the servicing centre of the OP no. 2 in June 2017 with problem of PBA and the servicing centre of the OP no. 2 returned the same after replacing the said unit of the mobile phone to the satisfaction of the complainant. On the above grounds the OP no. 2 has prayed for dismissal of the complaint petition.
Point to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.
Decision with reasons
Both the points are taken up together for consideration for the sake of convenience.
We have carefully perused the affidavit of the complainant, the written versions, the examination in-chief on affidavit filed by the complainant, the questionnaires and answers filed by the respective parties as well as the documents filed by the respective parties to substantiate their pleadings. Heard the argument submitted by the Ld. Advocates for the parties.
The OP no1 has raised objection that the complainant is not maintainable for want of territorial jurisdiction of this Ld. Forum as the Registered office of this OP no1 is outside the territorial jurisdiction of this Ld. Forum. Unless and until the permission is sought for by the complainant from this ld Forum, the institution of this complaint is not maintainable.
It appears that the complainant has made party to the show room of the OP no1 which is under the jurisdiction of this Forum. So, there is no bar in filing this complaint before this Ld. Forum, although the registered office of the OP no.1 is outside the territorial jurisdiction of the Forum.
So, the complaint is maintainable.
The complainant has stated not only in the complaint but also during cross-examination by the OP no.1 that the defect in the mobile set was manufacturing defect.
It is well settled law that manufacturing defect cannot be determined on the simpliciter written submission of the complainant and needs proper analysis and test report of expert. In connection ld. advocate for the OP No. 2 has referred a decision of Hon’ble National Commission in 2017 (2) CPJ 387 (NC) wherein it has been held in the absence of any credible evidence that there exists any manufacturing defect the petitioner is not entitled to replacement or refund of the entire purchase price. Another decision referred by the Ld. Advocate for the OP No. 2 is 2014(1) CPC 267 “in the case of Classic Automobiles Vs Lila Nand Mishra &Another, [2010(2) CPC 67] it has been stated that the onus to prove the manufacturing defect was on the complainant and further, it was necessary to obtain expert opinion before saying that there was manufacturing defect”.
Ld advocate for the OP no. 2 submitted that in absence of any technical report the present complaint deserves dismissal on this ground only.
Besides that, in answer to every question by the OP No. 2 the complainant has stated “that he cannot say, it is not known to him, he does not know and so so from which it reveals that the complainant has no technical knowledge of the mobile set which he allegedly purchased. Then how can he be sure that it is a manufacturing defect., So, in absence of any expert report we cannot come to the conclusion that the mobile had any manufacturing defect.
Secondly the complainant has stated that the mobile was given to the service centre of the Company at Chaitanyapur on 01.06.2017 and after repair said set was returned to the complainant on the same day from said service centre. After some days the set faced the same problem. The grievance of the complainant is that the set often hanged and net connection was not proper and automatically the said mobile set is switched off and gallery option did not open properly.
The OP No. 2 has stated that the complainant has not produced any purchase invoice. It appears that the complainant has produced copy of the tax invoice dated 15.09.2016 but not the purchase invoice. Here we see in the terms and conditions of the warrantee that warrantee will be as per manufacturing limit period. Warranty covers only the defects of the product arising out of the manufacturing or faulty workmanship within the warranty period. The warrantee service will be provided directly by the manufacturer’s authorized servicing centre.
Op No 1 though has not contested the case, but they are not responsible for any loss or damage occurred due to manufacturing defect of any item at any point of time., It is also one of the terms and conditions that goods once sold can not be taken back. We have already held that without expert opinion it can not be said that the set has manufacturing defect and so, also the OP no.1 can not be held liable for replacement or refund of the purchase value.
Ld advocate for the OP no.2 submitted that the complainant has prayed for a direction upon the OPs to give a new mobile set to the complainant in place of the defective set or to refund the purchase value of Rs 50,000/- with 10% interest from the date of purchase and also compensation of Rs. 30,000/- and litigation cost of Rs. 10,000/-.
In this regard the ld. Advocate for the OP no.2 has referred decision reported ion 2006(1) CLT 527 (NC) where it has been held that equipment or machinery cannot be ordered to be replaced which can be repaired. Further in III (2000) CPJ, 544 and 1999(1) CPR 20 it has been held by National Commission that for replacement of product the defect must be manufacturing and for proving manufacturing defects Expert report is essential. The complainant has sought the relief of refund of the purchase piece for the said handset which is not permissible in the eye of law nor in the terms of warranty period.
The ld advocate for the OP no. 2 has submitted that according to 2000(1) CPC – 3 wherein it has been held that when terms of warranty does not cover refund or replacement then a consumer cannot claim replacement or refund during or after the lapse of the warranty period. A consumer can only claim repairing of the product if permissible under the terms of service contract or warrantee.
Ld Advocate for the OP No. 2 further argued that it was held in 2006 (4) SCC 644 that where a warranty condition is specifically stated, a contrary implied warranty cannot be imputed. In Bharati Knitting Vs. DHL Worldwide (1996) 4 SCC 704 the Hon’ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract.
From the submission of the Ld. Advocate for the OP no. 2 it reveals that the OP no .2 provides only one year’s warranty in case of hand set. Warranty covered only defects in contract arising out of manufacturing or invalid workmanship within the warranty period .
According to the terms and conditions of the contract a hand set cannot considered to be within warranty coverage on the following conditions :-
- Repair due to misuse or third party repair attempts;
- Repair due to external facts/medium/data type ;
- If not used as per usage specification ;
- If the product is misuse, damage caused by external force like water logging, etc.,
Further the warrantee of the handset becomes void in the following cases ;
- Liquid logged/water logging;
- Physical damage;
- Missing serial /IMEI Number;
- Tampering in any manner and
- Mishandling.
Admittedly the complainant took the hand set to the service centre of the OP no 2 in June 1st, 2017 and on inspection of the set it transpired that the printed board assembly of the set required replaced and the service centre of the OP no 2 made necessary repair and replaced the PBA as the hand set was within the warranty period and the set was returned admittedly, on 03.06.2017 to the complainant on his full satisfaction.
In view of the above detailed discussion and considering the legal aspects and facts of the case, we are of the view that the complainant is not entitled to any relief as prayed for.
Both the points are answered accordingly.
Hence, it is
O R D E R E D
That CC/568 of 2017 be and the same is dismissed on contest against the Opposite parties.
The parties would bear their respective costs.
Let copy of the judgment be supplied to all the parties free of cost.
