BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.110/2017

                     Date of filing: 02/11/2017

                                                                  Date of disposal: 29/09/2018

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

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 exchange the defective mobile with new one or refund the cost of mobile  Rs.36,900/- with interest @ 18% p.a. from the date of bill till rectification of mobile and pay Rs.50,000/- towards compensation for loss and Rs.5,000/- towards cost of the litigation and any other reliefs.

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

          The complainant submits that, he has purchased the mobile on 20.02.2017 for the consideration of Rs.36,900/-, Samsung C-900-C-9, PRO Gold IMEI No.356368080379317 with the OP.No.1, OP.No.1 issued the invoice bearing No.2223, within 7 days, the said mobile handset started giving problems, like non-operating finger print, unnecessarily and oftenly vibrating, getting over heat and does not get connected the computer.

          Further complainant submits that, he approached OP.No.2 on 10.03.2017 with the above said problem, the OP.No.2 collected the said mobile handset and said that, it is having a manufacturing defect and to resolve the same and issued the voucher bearing No.4232264199. After some days, the complainant collected the said mobile handset, it was working for only few days, within the span of 30 days, the same problem occurred. Further complainant submits that, he approached OP.No.2 and as per the instruction given by the OP.No.1. The OP.No.2 stated that, there is a problem in the mother board and as such it is not working properly, so he collected the mobile set and issued the voucher No.4235213049 and after few days, the said mobile handset had been returned to the complainant and complainant submits that, within a few days again the same problem is continued with the said mobile handset.  

          The complainant approached the Ops for 3-4 times with the same problem, even after changing the mother board, the problem is not resolved, since the mobile handset is under warranty period. Hence, the complainant has issued the legal notice to the Ops, but the Ops did not reply the said notice. Finally, the complainant has filed this complaint praying to refund the amount or exchange the defective mobile handset with new one and also pay compensation of Rs.15,000/- alongwith litigation charges of Rs.5,000/-.

3.      The Forum registered a case and issued a notice to the Ops. After service of the notices, the OP.No.1 & 2 have remained absent. Hence, they were placed Ex-parte. The OP.No.3 has appeared through his counsel and filed written version and stating that, the complaint filed by the complainant is totally false and it is not tenable in the eye of law. The OP.No.3 denied all the allegations of the complaint and stated that, the said mobile handset was purchased in joint name, when the product is in the joint name under the said circumstances, the complainant cannot file this complaint in his individual capacity. Further as per the pre-conditions stipulated in the warranty card, the mobile set should not be used for business purpose. But, the complainant submits that, he used the mobile handset for business purpose. Hence, the complaint is not entitled for warranty benefit. In view of the violation of the warranty condition, the complainant has no locus standi to file this complaint that to in his personal capacity. Even though, the complainant has not produced any job sheet showing that, he has approached the authorized service center 2-3 times. As per the allegations of the complainant, the OP.No.3 submits that, the said mobile handset is having manufacturing defect, he cannot say it himself.

          Further OP.No.3 submits that, the complainant approached the OP.No.2 only on 10.03.2017, vide job sheet No.4235213049. Moreover, the service center attended the problem, ever after that, the complainant did not appear before the service center, only his agent approached the service center and he endorsed about the same on the job card and further the complainant has not produced any supporting document to say that, he has approached the OP.No.2 to believe the subsequent visits. Complainant filed this compliant against this OP.No.3 for getting unlawful gain and they did not commit any deficiency in service. Hence prayed for dismissal of the complaint with costs.

4.      The complainant has filed his chief affidavit along with documents which are marked as Ex.C-1 to Ex.C-7 in support of his case. The documents are as follows;

On the other hand Op.No.3 has not filed any affidavit on behalf of his case and while filing his written version he has filed some documents which are as follows;

5.      On the basis of above said pleading, oral and documentary evidence, the following points arises for adjudications are as follows;

1. Whether the complainant proves that, there is deficiency in service on the part of the Ops as per C.P. Act?

2. What order?

6.      Our findings to the above points are as under:

1. Point No.1 – Negative.
2. Point No.2 - As per the final order;

R E A S O N S

7.     POINT NO.1:-  The complainant has filed this complaint making allegations against the Ops that, he has purchased the mobile handset with the OP.No.1. After purchasing the said mobile, it started giving trouble. The complainant approached the OP.No.2, which has been manufactured by OP.No.3, since the OP.No.2 is authorized Service Center. As per the complaint, the complainant has approached the OP.No.2 for two times, on both the time, the problem was not rectified, in second time even mother board is changed, the problem remained as it is. Hence, complainant got issued the legal notice and he did not received any reply from the Ops.

          On-going through the records of the complainant, the complainant had produced the invoice for purchase of the said mobile and further the complainant has purchased the said mobile from the OPs Company by name
Sri. Veerabhadreshwar Hello Words, as per the invoice produced by the complainant on dtd: 20.02.2017 which is marked as Ex.C-1. Moreover as to submission of the complainant, he had not produced any vouchers as mentioned in the complaint that, he had approached the OP.No.2 for repair of the said mobile handset and even the job card produced by the complainant it says that, there is a finger print problem and vibrating problem and heating is mention in the job card on dtd: 25.04.2017, simultaneously OP.No.3 also produced the same job card and complainant received the same stating that, the above job has been done to my satisfaction and signed, there is no another job card as mentioned in the complaint that, the Mobile handset is defective. But, mere allegation of complainant is not sufficient to hold that, the said mobile handset is defective one. For that proposition, we would like to refer decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, 2014 (Part 9) CPR 779 (NC) Dr. Nilesh G. Nimavat V/s. Medipicks & Anr. Where in the Hon’ble Court held that and consider, it is important point: Manufacturing defect must be proved by expert evidence any how complainant also not produced the handset which is in question to say that, the said handset is defective, even he had not filed any expert opinion.    

          We have observed that, the complainant had not produced any warranty card pertaining to the mobile handset to say that, the said handset is well in warranty period.
Off-course, the contention of the complainant is that, as per the Section 58 of evidence Act “admitted fact need not to be prove” and in the instant case, the mobile purchased by the complainant is admitted fact and this contention of the complainant cannot be admitted in this juncture. Because as per the contention of OP.NO.3, the mobile handset is purchased by the complainant in the name of company and even in the complaint itself, the complainant had stated that, the said mobile is used for the business purpose as per the warranty card produced by OP.No.3 says that, if the product is used for commercial purpose narrated in the warranty stands null and void. Moreover, we cannot believe only on the version complaint that, the mobile in question was a defected handset without proper evidence and supported documents and even there is no any expert opinion or else Forum saw the handset to say that, the said mobile handset is defective. Hence, we answer to Point No.1 in the Negative.  

8.      Point No.2:  In view of our findings on the above point, we proceed to pass the following;

O R D E R

1. This complaint is dismissed. No order on cost.
2. Send the copies of this Order to the parties free of cost.        

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Forum on this 29^th day of September, 2018).