DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 306/2016

Date of Filing:                      Date of Admission:             Date of Disposal:

         23.05.2016                                 30.05.2016                               s19.05.2022

P R E S E N T              :-      Shri Debasis Mukhopadhyay…………President.

                                       :-      Smt. Monisha Shaw …………………. Member.

JUDGMENT/FINAL ORDER

            This is a complaint under Section 12 of the Consumer Protection Act, 1986.

            The Complainant stated that he purchased a Samsung A7 handset from the O.P. No. 2 / Shop at a price of Rs. 26,740/- on 16/08/2015. The Complainant used the handset for a couple of months and observed several problems in the handset and sometimes in the month of March, 2016 the handset suddenly dropped from the Complainant’s pocket and the LCD of the same was broken into pieces. The Complainant forthwith contacted with the O.P. No. 2 and they referred the Complainant to the O.P. No. 1 / service centre. The Complainant deposited his handset for repairing works to be done by the O.P. No. 1 and the O.P. No. 1 had given estimation of Rs. 11,165/- which was paid by the Complainant on 29/03/2016. The Complainant on several occasion went to the O.P. No. 1 / service centre but they always provided next date of delivery of the handset. Ultimately, the O.P. No. 1 / service centre returned the handset to the Complainant in the same broken condition contending the handset would not be repaired due to non availability of necessary parts. The Complainant became shocked as it was quite unexpected from an authorized service centre that it would fail to deliver the parts of a 08 (eight) month old handset. The Complainant then contacted with the Samsung Customer Care and Docket No. 3704054017 was provided to the Complainant though such issue has not yet been resolved. The O.P. No. 1 after providing many dates to the Complainant refunded the amount taken as repair charge. The Complainant stated that he left no stone unturned to repair his handset but all his hope went at bay after being refused by the O.P. No. 1 / service centre to repair the handset. Ultimately, being upset by the performance of O.P. No. 1 / service centre, the Complainant became helpless and it was clearly a deficiency of

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service caused from the end of the Opposite Parties as the handset of the Complainant could not be repaired due to palpable negligence in discharging its after sale service by refusing to render service towards him. Hence, the Complainant filed this case praying for a direction to the O.Ps jointly or severally to refund a sum of Rs. 26,740/- to the Complainant towards the price of the mobile handset and other relief like compensation and cost.

The O.P. Nos. 1 and 2 did not contest the case. The O.P. No. 3 contested the case by filing written statement denying the allegations of the Complainant. The O.P. No. 3 contended that the case was not maintainable and it was speculative and there was no cause of action. The O.P. No. 3 stated that on 29/03/2016 the Complainant visited the O.P. No. 1 with 2 / 3 men who turned out to be abusive and demanded free of cost repair but ultimately the Complainant agreed to pay the estimated repairing charges. After making payment handset the staff of O.P. No. 1 was compelled to hand over a Loner hand set for temporary use by Complainant. In course of repair work it transpired that one of the spare parts was not readily available and the Complainant was informed that repair process would take some time but the Complainant demanded return of the hand set along with the payment made for repair and so the hand set was returned to the Complainant along with repair cost and the Complainant also returned the Loner set. The O.P. No. 3 stated that the O.P. No. 3 cannot go beyond its warranty terms and policy to meet the Complainant’s untoward claim. O.P. No. 3 contended that the Complainant was not a consumer and there was no deficiency of service or unfair trade practice. The O.P. No. 3 stated that the Complainant filed the case to malign the reputation of the O.P. No. 3 and there was no ground to give any relief to the Complainant and hence the O.P. No. 3 prayed for dismissal of the case.

            Considering the contentions of the parties it is found that the point for consideration in this case are whether the case is maintainable or whether there is any cause of action and whether the Complainant is entitled to get any relief as prayed for or not.

Decision with Reasons:-

The Ld. Advocate for the Complainant submitted that the Complainant submitted the handset to the O.P. No. 1 / service centre for its repair within 08 months from its purchase and the Complainant agreed to pay the amount of repair charge as assessed by the O.P. No. 1 / service centre but O.P. No. 1 / service centre did not repair the said handset and it was clearly a deficiency of service within the meaning of the Consumer Protection Act. He also submitted that the O.P. was duty bound to repair the handset and the Complainant suffered huge loss as he could not use the handset which was purchased by the Complainant with enormous amount of money and the handset was useless to the Complainant though the Complainant had to pay month by month instalment to the bank for purchase of the handset. He submitted that the Complainant is entitled to get the reliefs as prayed for.

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The Ld. Advocate for the O.P. No. 3 submitted that admittedly the handset was damaged due to negligence of the Complainant and there was no manufacturing defect for which the O.P. No. 3 can be made liable. He submitted that the O.P. company was responsible only in respect of the manufacturing defect and nothing else. There could not be any warranty regarding physical damage or liquid damage and this case was frivolous one just to malign reputation of the O.P. No.3 for wrongful gain and he prayed for dismissal of the case.

            We have considered the written complaint, written version of the O.P. No. 3, the evidence adduced by both sides and submissions of both sides. It is evident from the contentions of the parties that the facts are mostly admitted. It is admitted that Complainant purchased the handset as alleged and that within about 08 months it was damaged due to the negligence of the Complainant as it fell down from the pocket of the Complainant. Then the Complainant went to the service centre and deposited the hand set to the O.P. No. 1 / service centre and the O.P. No. 1 / service centre assessed the damage and charged Rs. 11,165/- from the Complainant for repair of the hand set but thereafter the O.P. No. 1 / service centre could not repair the hand set as some parts were not available and then the O.P. No. 1 / service centre returned the damaged hand set to the Complainant and also refunded the amount of Rs. 11,165/- to the Complainant.

            The Complainant honestly admitted that the hand set fell down from his pocket and he therefore agreed to pay the amount of repair charge as assessed by the O.P. No. 1 / service centre. Since there was negligence on the part of the Complainant therefore the Complainant agreed to pay the amount of the repair charge. If there was no negligence on the part of the Complainant then there was no reason to give the repair charge because then it should have been free of cost. Once he paid the repair charge as assessed by the O.P. No. 1 / service centre then the O.Ps have bounden duty to repair the handset and return it to the Complainant after repairing the same. This could not be done by the O.P. No. 1 / service centre because of non availability of one of the parts of the hand set. This damage of the hand set took place within 08 months of the purchase of the hand set and therefore the O.Ps had a duty to ensure the availability of all the spare parts of the hand set because otherwise the Complainant and other purchaser who had purchased this hand set would be helpless if any accidental loss or damage took place. Thus by refusing to repair the hand set after accepting the repair charge there was a gross deficiency of service on the part of the Opposite Parties specially because the Complainant has paid the entire repair charge of Rs. 11,165/- as assessed by the O.P. No. 1 / service centre.

            If there was any manufacturing defect then such amount could not have been charged by the O.P. No. 1 / service centre and the repair would have been free of cost within the warranty period. Therefore, we find that there was a clear deficiency of service on the part of

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the O.Ps by not repairing the hand set after they took the repair charge from the Complainant. The Complainant suffered loss since he could not use the hand set that he purchased at a high amount of Rs. 26,740/-. Thus the O.Ps have liability in respect of the repair of the hand set at the cost of Rs. 11,165/-. Accordigly, we find that the O.Ps must refund the amount of Rs. (26,740 – 11,165) = Rs. 15,575/- to the Complainant for their deficiency of service along with interest there on.

            In the result, the issues are decided accordingly in favour of the Complainant.

Hence,

It is Ordered,

            That the case being no. C.C. 306/2016 be and the same is allowed on contest against the O.P. No. 3 and ex-parte against the rest. The O.Ps are directed to refund Rs. 15,575/- to the Complainant along with interest there on @ 6% from the date of filing of this case till payment of the same within 02 months from this date failing which the Complainant is at liberty to execute the decree according to law.

            The Complainant is to return the damaged hand set to the O.Ps after getting the decretal amount.

Let plain copy of this order be given to the parties free of cost.

Dictated & Corrected by me                      

President                  

Member                                                                                                         President