DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.262 of 04-04-2016

Decided on 18-01-2017

Ashmita Romana aged about 19 years D/o Navjot Singh Romana R/o H.No.431-H (22314), Civil Station Near Guru Nanak Public School, Bathinda.

........Complainant

Versus

1.Balaji Telecom, Service Centre of Samsung India, Gali No.O-B Opposite M.S.D. School, Gate No.5, Bibiwala Road, Bathinda.

2.MVS Communication, Shop No.7, Subhash Market Near Water Tank, Bathinda.

3.Samsung India Electronics Pvt. Ltd., B-1, Sector 81, Phase 2, Noida, District Gautam Gandhi Nagar, Uttar Pradesh.

.......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.N.S Romana, Advocate.

For opposite party Nos.1 and 3: Sh.Kuljit Pal Sharma, Advocate.

Opposite party No.2: Ex-parte.

ORDER

M.P Singh Pahwa, President

1. The complainant Ashmita Romana (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).

2. Briefly stated, the case of the complainant is that she is taking her study in second semester in five years integrated course in law. For the proper purpose of her study, she wanted to purchase one smart phone with big display. As such, she purchased one premium quality Samsung Galaxy A-8 mobile handset as per her requirement for Rs.31,500/- vide bill No.119 from MVS communication (opposite party No.2), manufactured by Samung India Electronics Pvt. Ltd. (opposite party No.3) on 20.8.2015.

3. It is alleged that immediately after use of the mobile handset, the complainant noticed some problems in its functioning, internet was not working properly as the signal was dropped from it during its use and was re-established after its restart. The complainant through her father deposited the mobile handset with opposite party No.1 on 26.10.2015, but after getting needful done, the problem still persisted. On 9.3.2016 also, the mobile handset was deposited with opposite party No.1 for second time and got repaired, but on 14.3.2016 after taking back the mobile handset from the service centre, it was found that the mobile handset was not working properly and opposite party No.1 failed to repair it. Thereafter a number of e-mails were sent to opposite party No.3. On the assurance of opposite party No.3, the mobile handset was deposited with opposite party No.1 on 16.3.2016.

4. It is further alleged that on 16.3.2016, opposite party No.1 failed to do needful and thereafter a number of e-mails were sent, but to no effect.

   On this backdrops of fact, the complainant has alleged deficiency in service on the part of opposite parties and has claimed Rs.1.5 lakhs as cost; Rs.2.5 lakhs as compensation on account of harassment and humiliation etc. Hence, this complaint.

5. Upon notice, opposite party Nos.1 and 3 appeared through their counsel whereas none appeared on behalf of opposite party No.2. As such, ex-parte proceedings were taken against it.

   Opposite party Nos.1 and 3 contested the complaint by filing their joint written version. In their joint written version, opposite party Nos.1 and 3 have raised the preliminary objections that the complainant has concealed the true and material facts from this Forum. The mobile handset was working properly, but the complainant has not taken back her mobile handset in-spite of repeated calls and reminders. The complaint is liable to be dismissed U/s 26 of 'Act'. The warranty is subject to its terms and conditions as per warranty card supplied with the product at the time of sale. The performance of the mobile handset depends upon the physical handling of the product. The mobile handset is lying with opposite party No.1, but the complainant has not intentionally taken back it. She has not set out any legitimate ground entitling her for replacement of the mobile handset with damages and litigation cost. The complaint is gross misuse of process of law. No cause-of-action has arisen in favour of the complainant and against opposite party Nos.1 and 3. There is no deficiency in service.

6. On merits, it is denied that the complainant purchased Samsung Galaxy mobile handset from opposite party No.2, but it is stated to be matter of record. All other averments of the complainant are denied. Opposite party Nos.1 and 3 have reiterated their stand as taken in the preliminary objections and detailed above. In the end, they have prayed for dismissal of complaint.

7. Complainant and opposite party Nos.1 and 3 were asked to produce evidence.

8. In support of her claim, the complainant has tendered into evidence her affidavits dated 15.7.2016 and 4.4.2016, (Ex.C1 and Ex.C15); photocopies of e-mails, (Ex.C2 to Ex.C14); photocopy of invoice, (Ex.C16); photocopies of job sheets, (Ex.C17 to Ex.C20) and closed the evidence.

9. To rebut the evidence of the complainant, opposite party Nos.1 and 3 have tendered into evidence affidavit of Anindya Bose dated 16.5.2016, (Ex.OP1/1) and closed the evidence.

10. It is relevant to mention that during the pendency of complaint, the complainant has received the mobile handset on 28.6.2016 but without prejudice to right regarding other reliefs.

11. We have heard learned counsel for parties and gone through the file carefully.

12. Learned counsel for complainant has submitted that the complaint cannot become infructuous for the reason that opposite party Nos.1 and 3 have handed over the mobile handset during the pendency of complaint. It is not disputed that the complainant handed over the mobile handset on 16.3.2016 and it has been received back on 28.6.2016. Opposite party Nos.1 and 3 have rather blamed the complainant by alleging that she has not turned up to collect her mobile handset, but there is no notice by opposite party Nos.1 and 3 asking her to receive the mobile handset after repair. Therefore, it is afterthought version of opposite party Nos.1 and 3 to save their skin. The complainant has placed on record a number of e-mails after 16.3.2016 for getting her mobile handset repaired, but opposite party Nos.1 and 3 have nowhere in their written reply asked the complainant to collect her mobile handset. This fact also proves that opposite party Nos.1 and 3 were not ready with the mobile handset. They have caused unnecessary delay in repairing the mobile handset. The complainant remained without the mobile handset for more than 3 months due to deficiency in service on the part of opposite party Nos.1 and 3. Therefore, the complainant is entitled to claim compensation and litigation cost.

13. On the other hand, learned counsel for opposite party Nos.1 and 3 has reiterated his stand as taken in the written version and detailed above and submitted that the complainant has not come forward to collect her mobile handset and it has been already delivered to her in perfect working condition. The complaint has already become infructuous and be dismissed.

14. We have given careful consideration to these rival submissions.

15. It is not disputed that the complainant purchased one mobile handset from opposite party No.2, manufactured by opposite party No.3. The material allegations of the complainant are that the mobile handset was not working properly and it was handed over to opposite party No.1 on 16.3.2016, but opposite party No.1 has failed to do needful. The complainant has placed on record number of e-mails wherein she has reiterated that the mobile handset has already handed over to the service centre, but no action has been taken. Opposite party Nos.1 and 3 have pleaded that the complainant has not come forward to collect her mobile handset, but in response to e-mails of the complainant, there is nothing to show that the mobile handset was ready and there is nothing to show that the complainant was asked to collect her mobile handset. In these circumstances, it is proved that opposite party Nos.1 and 3 were deficient by not repairing the mobile handset within the reasonable time.

    Of-course, the mobile handset has been delivered to the complainant, but after more than 3 months. Therefore, deficiency in service on the part of opposite party Nos.1 and 3 stands proved.

16. For the reasons recorded above, the complaint is partly accepted with compensation of Rs.5000/- and cost of Rs.2000/- against opposite party Nos.1 and 3 and dismissed qua opposite party No.2.

17. The compliance of this order be made jointly and severally by opposite party Nos.1 and 3 within 30 days from the date of receipt of copy of this order.

18. The complaint could not be decided within the statutory period due to heavy pendency of cases.

19. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    18-01-2017

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member