Punjab

Faridkot

CC/16/215

Khusleen Kaur - Complainant(s)

Versus

Chopra Telecom - Opp.Party(s)

Ashu Mittal

17 Apr 2017

ORDER

DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        215

Date of Institution :   2.08.2016

Date of Decision :     17.04.2017

 

Khushleen Kaur aged 19 years, d/o Jaswinder Singh s/o Gurdeep Singh r/o Sahibzada Fateh Singh Nagar, Kotkapura, District Faridkot.

   .....Complainant

Versus

1.  Chopra Telecom, Chopra Market, Raileay Road, Kotkapura through its proprietor-98559-47789.
2. Samsung Care Centre, Near Chhibber Motors, Faridkot Road, Kotkapura, Tehsil Kotkapura, District Faridkot.
3. Samsung India Electronics Pvt Ltd, A 25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi-110044 through its MD.

......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President.

Sh P Singla, Member.

 

Present:       Sh Jatinder Maria, Ld Counsel for complainant,

 Sh H S Brar, Ld Counsel for OP-1,

 Sh Jatinder Bansal, Ld Counsel for OP-2 and 3.

 

ORDER

(Ajit Aggarwal , President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the defective mobile hand set with new one or to refund its cost price and for also directing Ops to pay Rs 25,000/- as compensation for mental agony and harassment etc and litigation expenses.

2                               Briefly stated, the case of the complainant is that complainant wanted to go abroad and she required a smart phone to stay connected with embassy and her college and for this purpose, on 21.07.2016, she alongwith her father approached OP-1 and on his assurance purchased a mobile phone of Samsung model S 6  IMEI No. 357215/06/147125/9 from OP-1 on cash payment of Rs.42,000/-. OP-1 also gave guarantee of one year against any risk to phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang, produced heat on making or receiving any call and said mobile suddenly stopped working and got off. Complainant made  complaint regarding this fact to OP-1, who asked her to approach OP-2. She went to OP-2 and same kept the mobile with them and asked her to come after one week. After a week complainant again went to OP-2 to take back her phone, but OP-2 returned the phone to her without repairing it and without removing any defect from it and  said that mobile has some manufacturing defect and it can not be removed. Then, complainant and her father again visited OP-2 and requested him to replace the defective mobile handset, but he flatly refused to do so saying a thing once sold can not be returned or replaced. Ld counsel for complainant contended that mobile in question is under guarantee and warrantee and OPs are bound to repair or replace the same. Complainant made many requests to OPs regarding mobile in question but OPs did not do the needful and all her efforts to get it repaired or replaced bore no fruit and complainant has suffered great harassment and mental tension due to this act of OPs, which amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed for seeking direction to Ops to pay Rs 25,000/- as compensation for mental agony and harassment  and litigation expenses besides the main relief. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.08.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                         On receipt of the notice, OP-1 filed reply taking preliminary objection that answering Op is the authorized dealer of OP-3 and sells products of OP-3 in sealed packs and he sold the said phone to complainant as received from OP-3 in sealed pack. It is averred that complaint filed by complainant is false, frivolous and is gross abuse of process of law and moreover, complainant has not alleged any specific allegation against OP-1. Moreover, complainant has never submitted her mobile with authorized service centre of manufacturing company and it proves that mobile in question was working properly. There is no deficiency in service on the part of OP-1. It is further averred that obligation of Ops under warranty is to set right the mobile by repairing it or by replacing its defective parts only and moreover; the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and games leading to alleged problem of hanging and production of heat in said mobile handset, but complainant never approached authorized service centre of Ops to get the same checked or repaired therefrom. Complainant never reported any problem in her mobile handset to Ops. However, on merits, OP-1 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of OP-1. All the other allegations and allegation with regard to relief sought too have been denied being wrong and incorrect and prayed for dismissed of complaint.

5                          OP- 2 and 3 filed reply taking preliminary objections that complaint is not maintainable on the ground that till date, complainant has never submitted her mobile with answering Op regarding any kind of defect in it. She has concealed the material facts from this Forum and is therefore not entitled to any relief. This Forum has no territorial jurisdiction to hear and try the present case as answering OP has no branch office in the territorial jurisdiction of this Forum. It is contended that complaint is false, frivolous and vague and is a process of abuse of law. The complainant has not alleged any specific allegations against answering OP as complainant has pleaded that complainant allegedly purchased said mobile from Op-1 and till date she has never visited any authorized service centre with any kind of problem in her handset and it shows that said handset is working properly and has no defect in it. It is also asserted that performance of the mobile phone depends upon the physical handling of the product and possibility of mishandling the hand set cannot be ruled out. In present case, complainant might have been using the non compatible mobile applications and games leading to alleged problem of hanging and production of heat in said mobile handset, but complainant never approached authorized service centre of Ops to get the same checked or repaired therefrom. Moreover, there is no expert evidence on record to prove that handset of complainant was suffering from any defect. Answering Ops have never denied their services after sales to complainant, but complainant herself never submitted her handset with them to get it checked or repaired. Moreover, answering OP is liable only for repairing any defect and no assurance for replacement was ever given by the same. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. There is no deficiency in service on the part of answering OP. However, on merits, it is reiterated that complaint filed by complainant is false, frivolous, vexatious and vague and is filed only to extract money from OPs. It is liable to be dismissed as complainant has no locus standi to file the present complaint. It is asserted that this Forum has no jurisdiction to hear and try the present complaint. It is further submitted that there is no deficiency in service on the part of answering OP. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering OP.

6                         Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to 4 and then, closed the evidence.

7                         The OP-1 tendered in evidence his affidavit Ex.OP-1/1 and closed the evidence. Ld Counsel for Op-2 and 3 tendered in evidence affidavit of Anindya Bose as Ex OP-2, 3/1, document Ex OP-2, 3/2 and then, closed the evidence on behalf of Op-2 and 3.

8                          We have heard the ld counsel for parties and have carefully gone through the evidence and documents placed on record by respective parties.

 9                          The ld Counsel for complainant argued that complainant wanted to go abroad for doing graduation and she required a smart phone to stay connected with embassy and her college and for this purpose, on 21.07.2016, she purchased a mobile phone of Samsung model from OP-1 on cash payment of Rs.42,000/- and at the time of purchase, OP-1 gave guarantee of one year against any defect or problem to phone, but since the beginning, said phone did not work properly and started creating hindrance. It used to hang, produced heat on making or receiving any call and said mobile suddenly stopped working and got off. Complainant made complaint regarding this fact to OP-1, who asked her to approach OP-2. She went to OP-2 and same kept the mobile with them and asked her to come after one week. After a week complainant again went to OP-2 to take back her phone, but OP-2 returned the phone to her without repairing it and without removing any defect from it and said that mobile has some manufacturing defect and it can not be removed. Then, complainant and her father again visited OP-2 and requested him to replace the defective mobile handset, but he flatly refused to do so saying a thing once sold can not be returned or replaced. Ld counsel for complainant contended that mobile in question is under guarantee and warrantee and OPs are bound to repair or replace the same. Complainant made many requests to OPs regarding mobile in question but OPs did not do the needful and all her efforts to get it repaired or replaced bore no fruit and complainant has suffered great harassment due to this act of OPs, which amounts to deficiency in service. She has prayed for accepting the present complaint.

10                                 To controvert the allegations of complainant, ld counsel for OP-1 argued that answering Op is the authorized dealer of OP-3 and sells products of OP-3 in sealed packs and he sold the said phone to complainant in sealed pack condition. It is averred that complaint filed by complainant is false, frivolous and is a gross abuse of process of law and even, complainant has not alleged any specific allegation against OP-1. It is further averred that complainant has never submitted her mobile with authorized service centre of manufacturing company and it proves that mobile in question was working properly. There is no deficiency in service on the part of OP-1. It is asserted that obligation of Ops under warranty is to set right the mobile by repairing it or by replacing its defective parts only. It is argued that the performance of mobile phone depends upon the physical handling of product apart from its compatibility of downloading mobile applications and games. In present case, complainant might have been using the non compatible mobile applications and games leading to alleged problem of hanging and production of heat in said mobile handset, but complainant never approached authorized service centre of Ops to get the same checked or repaired therefrom. Complainant never reported any problem in her mobile handset to Ops. OP-1 has denied all the allegations being wrong and incorrect and reiterated that there is no deficiency in service on the part of OP-1 and prayed for dismissal of complaint.

11                         Counsel for OP- 2 and 3 argued that complaint is not maintainable on the ground that till date, complainant has never submitted her mobile with answering Op regarding any kind of defect in it. She has concealed the material facts from this Forum and is therefore, she is not entitled to any relief. This Forum has no territorial jurisdiction to hear and try the present case as answering OPs have no branch office in the territorial jurisdiction of this Forum. It is contended that complaint is false, frivolous and vague and is a process of abuse of law. The complainant has not alleged any specific allegations against answering OP as complainant has pleaded that complainant allegedly purchased said mobile from Op-1 and till date she has never visited any authorized service centre with any kind of problem in her handset and it shows that said handset is working properly and has no defect in it. It is also asserted that performance of the mobile phone depends upon the physical handling of the product and possibility of mishandling the hand set cannot be ruled out. In present case, complainant might have been using the non compatible mobile applications and games leading to alleged problem of hanging and production of heat in said mobile handset, but complainant never approached authorized service centre of Ops to get the same checked or repaired therefrom. Moreover, there is no expert evidence on record to prove that handset of complainant was suffering from any defect. Answering Ops have never denied their services after sales to complainant, but complainant herself never submitted her handset with them to get it checked or repaired. Moreover, answering OP is liable only for repairing any defect and no assurance for replacement was ever given by the same. It is asserted that complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence and there is no authenticated report of expert and qualified person of central approved labs to support the allegations of the complainant and in the absence of any expert evidence, the claim of complainant cannot be allowed. There is no deficiency in service on the part of answering OP. However, on merits, it is reiterated that complaint filed by complainant is false, frivolous, vexatious and vague and is filed only to extract money from OPs. It is liable to be dismissed as complainant has no locus standi to file the present complaint. It is asserted that this Forum has no jurisdiction to hear and try the present complaint. It is further submitted that there is no deficiency in service on the part of answering OP. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering OP.

12                                     After careful observation of the record placed on file and evidence led by parties, it is observed that it is the admitted case of the parties that complainant purchased the mobile phone manufactured by OP-2 and 3 from OP-1, but it is totally refuted that there is any defect in the said mobile handset. Main contention of complainant is that she purchased the said smart phone to stay in touch with embassy and her college at Foreign, where she wanted to go for completing her graduation and on assurance of OP-1, she purchased the said phone on cash payment of Rs.42,000/-, but phone in question was having some manufacturing defect and despite repeated complaints by complainant, Ops did not removed the defect and set it right. On the other hand, Ops have denied all the allegations of complainant and stressed mainly on point that complainant never brought her mobile with them for repair purpose. Ops have also asserted that it might be that complainant might have been using the non compatible mobile applications and games leading to alleged problem of hanging and production of heat in said mobile handset, but complainant never approached authorized service centre of Ops to get the same checked or repaired therefrom.

13                              Complainant has relied upon EX C-2, which is copy of bill dt 21.07.2016, it clearly proves the fact that complainant is the consumer of Ops and Ex C-4 is the affidavit of father of complainant, who accompanied her during purchase of mobile in question and at the time of making complaints to Ops regarding defects in phone. Through her affidavit Ex C-1, she has reiterated the pleadings taken in main complaint. There is no doubt that complainant purchased the mobile in question from OP-1 and it is manufactured by OP-2 and Op-3 and this fact is also admitted by Ops. Case of the complainant is that her mobile was not working properly and was causing hindrance in her work. Plea taken by Ops that she never brought her handset to them and did not bring into their notice any complaint regarding defect in phone. Admittedly, the complainant has purchased the mobile phone in question from Ops and there was one year warranty against any defect on it and within this period, they are liable to repair and remove all the defects from the phone. The phone in question is still under warranty and the complainant is entitled to get the same repaired from Ops free of costs. Now, the Ops can not escape from their liability to repair the mobile phone in question. Hence, complaint in hand is hereby accepted against OP-2 and 3 and is dismissed against OP-1, who is mere a shopkeeper and he has no role to play in the repair of said mobile handset. OP-2 and OP-3 are directed to repair the mobile handset of complainant free of costs under warranty condition within one month of receipt of the copy of the order. OP-2 and 3 are further directed to pay Rs.2,000/-to complainant for harassment and mental agony suffered by her. Compliance of the order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 17.04.2017                                

Member                     President

(P Singla)                 (Ajit Aggarwal)