| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.467 of 01-09-2016 Decided on 27-10-2017 Manish aged about 20 years S/o Gulshan Kumar S/o Jagdish Rai R/o House No.11673A, Gali No 2, Sanguana Basti, Bathinda. ........Complainant Versus 1.Midha Telecom Near Band Box, Amrik Singh Road, Bathinda, through its Proprietor. (Deleted) 2.Balaji Telecom, Street No.20, Ajit Road, Ghorewala Chowk, Bathinda, through its Proprietor/Manager. 3.Samsung India Electronics Pvt Ltd., A-25, Ground Floor, Front Tower, Mohan Co-operative Industrial Estate, New Delhi-110044, through its CEO. 4.AppsDaily Solutions Pvt Ltd., First Floor Above Midha Telecom, Amrik Singh Road, Bathinda, through its Proprietor/Partner. .......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.K.S Sidhu, Advocate. Opposite party No.1: Deleted. For opposite party Nos.2 & 3: Sh.Kuljit Pal Sharma, Advocate. Opposite party No.4: Ex-parte. ORDER M.P Singh Pahwa, President The complainant Manish (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Midha Telecom and Others (here-in-after referred to as opposite parties). Briefly, the case of the complainant is that he purchased one Samsung mobile handset for Rs.11,000/- vide retail invoice No.6231 dated 1.6.2016 from opposite party No.1, manufactured by opposite party No.3. At that time, he was informed by opposite party No.1 that the mobile handset carries warranty of one year from the date of its purchase against any problem. He got insured his mobile handset from opposite party No.4 against payment of one time premium of Rs.1200/- for the period from 1.6.2016 to 31.5.2017. It is alleged that after purchase of the mobile handset, the complainant started using it, but on 16.6.2016, it went dead and remained unserviceable. He approached opposite party No.2 and made it aware about the defect in the mobile handset and also informed that his mobile handset is insured. Opposite party No.2 took the mobile handset for inspection and asked the complainant to come after one hour. The complainant alongwith his brother Amit Rajora again approached opposite party No.2, it informed him that display of the mobile handset has gone out of order and it is to be replaced with new one and he has to pay Rs.4600/- as it is not covered under warranty. Opposite party No.2 returned the handset to the complainant. The complainant checked the mobile handset and found that its display and 'on' and 'off' buttons have been changed. The display, after receiving the mobile handset, was found old and soiled one and 'on' and 'off' buttons had scratches. The complainant asked opposite party No.2 that it has changed the display and buttons of his mobile handset, but it did not admit their lapse and fault and misbehaved with him. Thereafter the complainant took the mobile handset to opposite party No.4, it checked the same and informed him that the mobile handset has been opened and its original display and 'on' and 'off' buttons have been removed from the mobile handset and IMEI sticker has been removed. Opposite party No.4 asked the complainant to bring in writing from the service centre regarding its having opened the mobile handset. The complainant approached opposite party No.2, it issued him job sheet against payment of Rs.300/-. It is further alleged that opposite party No.2 has removed the original display and 'on' and 'off' buttons of the mobile handset and also removed IMEI sticker. Due to this, opposite party No.4 refused to entertain the insurance claim of the complainant. It is also alleged that due to act of opposite parties, the complainant is suffering from great mental and physical agony and he could not use his mobile handset to the optimum due to defect. He has claimed compensation to the tune of Rs.50,000/- and cost of litigation to the tune of Rs.11,000/- and refund of price of the mobile handset alongwith interest @12% per annum. Hence, this complaint. In view of statement suffered by counsel for complainant, name of opposite party No.1 was deleted from the array of opposite parties. Upon notice, none appeared on behalf of opposite party No.4. As such, ex-parte proceedings were taken against it. Opposite party Nos.2 and 3 appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite party Nos.2 and 3 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. The mobile handset has been physically mishandled by the complainant as its 'LCD Display' was found to be broken when it was deposited with opposite party No.2 on 16.6.2016. Due to physical damage, repair of mobile handset was not covered under warranty and repair was to be done on chargeable basis. The estimate of repair was given to 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 this complaint against opposite party Nos.2 and 3. The further proceedings in this case is bad in the eyes of law. The complaint is liable to be dismissed U/s 26 of 'Act'. It is gross abuse of the process of law and based on false, frivolous and baseless allegations. The mobile handset was deposited with opposite party No.2 on 16.6.2016 with 'LCD Display broken', which shows that there is no inherent defect in the mobile handset, rather it has been mishandled by the complainant leading to breaking of LCD Display. Due to breakage of the mobile handset, it was not covered under warranty. As such, no cause-of-action has arisen in favour of the complainant to file this complaint. The obligation of opposite party Nos.2 and 3 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 damages and litigation cost. He has sought replacement of the mobile handset, which is not permissible under the law and terms of warranty. The replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that cannot be cured or repaired. On merits, it is admitted that there is warranty of one year subject to warranty terms and conditions as mentioned in warranty card supplied with the product. It is denied that on 16.6.2016, the mobile handset went dead and remained unserviceable. It is admitted that on 16.6.2016, the complainant approached opposite party No.2, it checked the mobile handset in his presence and found the display broken/damaged. It was conveyed to complainant that due to breaking of LCD display, mobile handset was not covered under warranty and repair will be done on chargeable basis only. The mobile handset was returned to complainant. It is denied that opposite party No.4 checked the mobile handset and informed the complainant that the mobile handset has been opened or original display of the mobile handset, 'on' and 'off' buttons have been changed. All other averments of the complainant are denied. After controverting all other averments, opposite party Nos.2 and 3 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 retail invoice, (Ex.C1); photocopy of job sheet, (Ex.C2); photocopy of bill, (Ex.C3); his affidavit, (Ex.C4) and closed the evidence. To rebut the claim of the complainant, opposite party Nos.2 and 3 have tendered into evidence affidavit of Anindya Bose dated 28.10.2016, (Ex.OP2/1); photocopy of warranty card, (Ex.OP2/2) and closed the evidence. We have heard learned counsel for parties and gone through the file carefully. Learned counsel for complainant has submitted that the material facts are not in dispute. It is proved by invoice, (Ex.C1) that the complainant purchased the mobile handset for Rs.11,000/- from opposite party No.1. Copy of job sheet, (Ex.C2) proves that the complainant approached opposite party No.2 with the defect in the mobile handset. The averment of the complainant is that the mobile handset went dead and remained unserviceable. As per job sheet, (Ex.C20) prepared by opposite party No.2, defect was found 'PBA Short EST'. Therefore, it is clear that the mobile handset was dead. There is nothing to show that the LCD display was found broken. In the written version, opposite party Nos.2 and 3 have taken the plea that at that time, LCD display was found broken when the mobile handset was deposited earlier with them on 16.6.2016 and due to this reason, repair was not covered. As opposite party Nos.2 and 3 have failed to prove that LCD display was broken at that time, therefore, their this plea is not acceptable. The mobile handset suffered defect due to manufacturing defect. Opposite party Nos.2 and 3 were bound to repair or replace the mobile handset with new one and in case of their failure, refund its price. Therefore, deficiency in service on the part of opposite parties stands proved. On the other hand, learned counsel for opposite party Nos.2 and 3 has submitted that the complainant has distorted the facts. The damage was caused due to mishandling. Of-course, in remarks 'PBA Short EST' is mentioned, but the mobile handset was not in working condition due to various defects. On next day, the complainant approached opposite party No.4 as the mobile handset was got insured from it. Opposite party No.4 was to do the needful or to reimburse the claim of the complainant. Opposite party Nos.2 and 3 have been unnecessary dragged into litigation. We have given careful consideration to these rival submissions. It is admitted and proved on record that the complainant purchased the mobile handset, manufactured by opposite party No.3. It is also not disputed that opposite party No.3 provided warranty for one year. Of-course, the complainant got his mobile handset insured from opposite party No.4, but it is well settled that liability of manufacturer and insurer are on different footings. The manufacturer is liable in case, there is any manufacturing defect or other defect not covered under the insurance cover. The complainant has simply pleaded that all of sudden, mobile handset was not working and he approached opposite party No.2. It is not case of the complainant that the mobile handset was damaged to claim reimbursement from opposite party No.4. Opposite party No.2 prepared the job sheet, copy of which is Ex.C2. As per this document, defect description column shows 'PBA Short EST/4600'. There is no reference of breakage of LCD. In the written version, opposite party Nos.2 and 3 have pleaded that on 16.6.2016, the mobile handset was found physically mishandled and LCD display was found to be broken. This plea is contradictory to the documentary evidence submitted by opposite party Nos.2 and 3 i.e. job sheet. There is no other evidence produced by opposite party Nos.2 and 3 to prove that damage was due to physically mishandling or any other fault on behalf of the complainant. Admittedly, the defect was reported within the warranty period. Opposite party Nos.2 and 3 are liable to do needful as per warranty terms and conditions. Their failure amounts to deficiency in service. Now, question is regarding relief for which the complainant is entitled to. The complainant has prayed for refund of the price of the mobile handset with new one by alleging manufacturing defect in it. There is no evidence to prove any manufacturing defect. As per condition No.8 of warranty terms and conditions, (Ex.OP2/2), obligation of opposite party Nos.2 and 3 under warranty is limited to repair or providing replacement of parts only. Therefore, the complainant is not entitled to refund of price of the mobile handset. For the reasons recorded above, the complaint is partly accepted with Rs.3000/- as cost and compensation against opposite party Nos.2 and 3 and dismissed qua opposite party No.4. Opposite party Nos.2 and 3 are directed to handover the mobile handset in question to the complainant after doing needful to make the mobile handset in working condition as per warranty terms and conditions. The compliance of this order be made within 45 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:- 27-10-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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