| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.521 of 24-10-2016 Decided on 26-09-2017 Neelesh Bansal aged about 41 years S/o Shrikrishan Bansal R/o # 17203, Aggarwal Colony, Bhatti Road, Bathinda. ........Complainant Versus 1.Balaji Telecom (Authorized Service Centre), Bibiwala Road, Gali No.0-B, Opp. M.S.D. School, Gate No.5, Bathinda-151001, through its Prop./Manager/M.D./Partner/Incharge. 2.Isha Enterprises, 6, Jawahar Nagar, Indore-452001, through its Authorized Signatory/Prop./Partner/Owner Isha Wadhwani. (Deleted) 3.EBAY India Private Limited, 14th Floor, North Block, R-Tech Park, Western Express Highway, Goregaon (East), Mumbai-400063, through its Prop./Owner/Authorized Signatory. (Deleted) 4.Samsung India Electronics Pvt. Ltd, A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi-110044, through its Manager/M.D/Director/Incharge. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainant: Sh.Naresh Garg, Advocate. For opposite party Nos.1 & 4: Sh.Kuljit Pal Sharma, Advocate. Opposite party Nos.2 & 3: Deleted. ORDER M.P Singh Pahwa, President The complainant Neelesh Bansal (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Balaji Telecom and Others (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that opposite party No.4 is manufacturer-cum-importer of Samsung Galaxy Note 4 Gold. Opposite party Nos.2 and 3 are the dealers/distributors of opposite party No.4 and sell the mobile handset of Samsung Galaxy Note 4 Gold. Opposite party No.1 is the service Centre of opposite party No.4. The complainant purchased one mobile handset Samsung Galaxy Note 4 Gold from opposite party No.2 through opposite party No.3 Ebay.com through internet at Bathinda on 28.4.2016 vide invoice dated 28.4.2016 for Rs.24,990/-. The mobile handset was purchased through internet at Bathinda, delivered at Bathinda and payment was made at Bathinda through cash on delivery. Opposite party No.2 gave one year guarantee on the mobile handset to the complainant. It is alleged that in the month of August 2016, the mobile handset started giving problem i.e. hang and not working properly and finally, dead on 13.9.2016. The mobile handset was deposited with opposite party No.1 on 13.9.2016 and it is lying with opposite party No.1. It is further alleged that there is manufacturing defect in the mobile handset. It could not be cured by opposite party No.1 till date. Opposite party No.1 told the complainant that the mobile handset is out of warranty against the rules and commitment. It is further alleged that opposite party No.1 took the signatures of the complainant on job sheet forcibly by saying that without signatures, it can not deposit the mobile handset for repair. Having no alternative, he signed the job sheet. It is further alleged that opposite party No.1 again and again assured the complainant that the mobile handset could not be repaired and it is going towards to the head service centre for repair. The mobile handset is still lying with opposite party No.1. The complainant requested opposite parties either to change the mobile handset with new one or refund of its amount, but to no effect. On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties. He has prayed for directions to opposite parties either to replace the mobile handset with new one or refund of its price with one year warranty alongwith interest @ 18% per annum. He has also claimed compensation to the tune of Rs.25,000/- and cost of litigation to the tune of Rs.25,000/-. Hence, this complaint. In view of statement suffered by counsel for complainant, name of opposite party Nos.2 and 3 was deleted from the array of opposite parties. Upon notice, opposite party Nos.1 and 4 appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite party Nos.1 and 4 have raised the preliminary objections that the complainant is not entitled for any relief from this Forum as he has concealed the true and material facts. He has not come to this Forum with clean hands. The mobile handset has been physically mishandled as it was found 'liquid logged' and damaged by the complainant when mobile handset was deposited with opposite party No.1 on 13.9.2016. Due to liquid logged damage, the repair of the mobile handset was not covered under warranty and repair was to be done on chargeable basis. The estimate was given to the complainant, but it was not approved by him. As such, the mobile handset could not be repaired. The complainant has not sought the permission of this Forum U/s 11(2)(b) of 'Act' before instituting of this complaint against opposite party Nos.1 and 4. The complaint is liable to be dismissed U/s 26 of 'Act' as it is gross abuse of the process and based on false, frivolous and baseless allegations. The mobile handset was purchased on 28.4.2016 and first time mobile handset was deposited with opposite party No.1 on 13.9.2016 i.e. after more than 4 months of purchase. On internal inspection, liquid logged was found in the mobile handset, which shows that there is no inherent defect in it. The mobile handset has been physically mishandled by the complainant leading to ingress of liquid. It was not covered under warranty. It is pleaded that the obligation of opposite party Nos.1 and 4 under warranty is subject to the warranty terms and conditions as mentioned in warranty card supplied with the product. The complainant has not set out any legitimate ground entitling him for replacement of the mobile handset with new one with damages and litigation cost. The replacement or refund is only permissible under terms and conditions of warranty. No cause-of-action has arisen in favour of the complainant and against opposite party Nos.1 and 4. There is no deficiency in service or breach of contract on the part of opposite party Nos.1 and 4. Opposite party Nos.1 and 4 never denied after sales services. They are still ready to provide service to the complainant on chargeable basis. On merits, opposite party Nos.1 and 4 have denied, for want of knowledge, that the complainant purchased Samsung Galaxy Note-4 mobile handset from opposite party No.2 through opposite party No.3. All other averments of the complainant are denied. Opposite party Nos.1 and 4 have reiterated its stand as taken in the preliminary objections and detailed above. In the end, opposite party Nos.1 and 4 have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainant has tendered into evidence photocopy of invoice, (Ex.C1); photocopy of job sheet, (Ex.C2); his affidavit dated 6.1.2017, (Ex.C3); photocopy of order statement, (Ex.C4); photocopy of message, (Ex.C5); photocopy of letter, (Ex.C6) and submitted written arguments. To rebut the claim of the complainant, opposite party Nos.1 and 4 have tendered into evidence affidavit of Anindya Bose dated 15.2.2017, (Ex.OP1/1); photocopy of warranty card, (Ex.OP1/2) and closed the evidence. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant. Learned counsel for complainant has submitted that the complainant has purchased the mobile handset, manufactured by opposite party No.4 through e-bay company. The invoice, (Ex.C1), order statement, (Ex.C4) and message, (Ex.C5) prove this fact. The complainant has pleaded that the mobile handset was deposited with opposite party No.1 due to some problem. Copy of job sheet, (Ex.C2) proves this fact. This document also proves that on 13.9.2016, nothing was reported showing liquid logged. This remarks has been made by opposite party No.1 later on. The mobile handset was not internaly checked in the presence of the complainant. The complainant has also received message, (Ex.C5) from opposite party No.3. As per this message, service was denied on the plea that unit is purchased from out of India. Therefore, opposite party No.4 is taking the different stand at different time only to escape from its liability. This fact amounts to deficiency in service and unfair trade practice. Opposite party No.4 provided warranty for one year. This fact is not disputed. The defect is reported within warranty period. Opposite party Nos.1 and 4 have denied to do needful. Therefore, the complainant is entitled either for replacement of the mobile handset with new one or refund of its price with interest and compensation. On the other hand, learned counsel for opposite party Nos.1 and 4 has submitted that the complainant has not approached to this Forum with clean hands. He wants advantage of his own default. The damage is caused by mishandling i.e. by liquid logged, which is not covered under warranty. Even otherwise, as per warranty terms and conditions also, the complainant cannot claim replacement of the mobile handset without proving any manufacturing defect. The mobile handset was purchased on 28.4.2016. The problem was reported for first time in the month of September 2016. The complainant has used the mobile handset for about 4 months without any problem. In case, there was any problem, the complainant would not have used the mobile handset for such a considerable time. There is no other evidence to prove any manufacturing defect. Therefore, the complaint be dismissed. We have given careful consideration to these rival submissions. The complainant has claimed that he has purchased the mobile handset, manufactured by opposite party No.4 on 28.4.2016. Of-course, vide message, (Ex.C5) opposite party No.3 conveyed the complainant that the unit is purchased from out of India and it is not considered in warranty, but the complainant has produced invoice, (Ex.C1), which proves that the mobile handset was purchased from Isha Enterprises (opposite party No.2) in India. Ex.C4, is order statement issued by e-bay.in i.e. opposite party No.3. As per this document also, opposite party No.2 is shown as shipping address. This document also proves that the mobile handset was purchased by the complainant from opposite party No.2 through opposite party No.3 in India. Now, in the written version, opposite party Nos.1 and 4 have taken the plea that the mobile handset is liquid logged, but there is no evidence to prove this fact. Opposite party Nos.1 and 4 have tendered into evidence affidavit of Anindya Bose, (Ex.OP1/1). He has not inspected the mobile handset at any stage. He has also not mentioned the name of technician by whom the mobile handset was inspected and found liquid logged. Therefore, this plea of opposite party Nos.1 and 4 is also not acceptable. The conclusion is that opposite party No.1 has refused to do needful without any justification. It amounts to deficiency in service. Now, question is regarding relief for which the complainant is entitled to. The complainant has prayed for replacement of the mobile handset with new one or refund of its price. He has used the mobile handset for about 4 months without any difficulty. There is no evidence to prove any manufacturing defect. As per condition No.8 of warranty terms and conditions, (Ex.OP1/2), obligation of opposite party No.4 under warranty is limited to repair or providing replacement of parts only. Therefore, the complainant is not entitled to replacement of the mobile handset with new one or refund of its price. For the reasons recorded above, the complaint is partly accepted with Rs.3000/- against opposite party Nos.1 and 4. Opposite party Nos.1 and 4 are directed to handover the mobile handset in question to the complainant after duly repair as per warranty terms and conditions. It is further made clear that original warranty/guarantee shall stand extended for the remaining period from the date of delivery of mobile handset to the complainant, i.e after excluding period from 13.9.2016 till date of delivery. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 26-09-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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