| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No. 163 of 18-8-2021 Decided on :12-4-2023 Professor (Dr.) Zameerpal Kaur Sandhu, R/o House No.258, Housefed colony, Bathinda, Tehsil and District Bathinda. ........Complainant Versus Mobile Store, Shop No.24-25, Ground floor, Mittal Mall, Bathinda, through its Prop./Partner. Dr. Mobile Store, SCF 77, Opposite Kapsons, Bathinda (Authorized Service Centre of Samsung India Electronics Pvt.Ltd.,) through its authorized representative. Samsung India Electronics Pvt. Ltd., 20th to 24th Floor, Two Horizon Centre, Gold Course Road, Sector 43, DLF PH-V, Gurgaon (Haryana) Pin 122202, through its Managing Director.
.......Opposite parties
Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM:- Sh.Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present:- For the complainant : Sh. Harpreet Singh, Advocate. For opposite parties : Opposite parties No. 1 & 2 Ex-parte. Sh. K.P. Sharma for opposite party No.3 ORDER Lalit Mohan Dogra, President:- The complainant Professor (Dr.) Zameerpal Kaur Sandhu (here-in-after referred to as complainant) have filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against Mobile Store and others (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that he purchased mobile handset Samsung S2OFE bearzing IMEI No. 358818744032973 from opposite party No. 1 against payment of Rs. 49,900/- in cash vide Invoice No. 2033 dated 29.11.2020. It is alleged that after purchase of handset, the complainant started using it for her online classes/administrative work but it started giving problem as it was overheating while in use and the handset used to flash message that phone is going to be switched off due to overheating and handset got switched off while in use due to overheating after flashing said message. The complainant approached opposite party No.1 and informed about the issue of overheating of handset and requested him to replace the mobile handset with a new one as promised at the time of purchase but the opposite party No. 1 ran away and put off the matter on one pretext or the other and later on, advised the complainant to approach opposite party No. 2 in the matter being the authorized service centre of SAMSUNG. It is further alleged that thereafter, complainant approached opposite party No. 2 in the matter but they did not issue job sheet to the complainant on her four visits to them, even after retaining the mobile handset. The complainant also contacted the opposite parties No. 3 in the matter through various emails and thereafter opposite party No. 2 issued job sheet to the complainant and changed the mother board of the handset but the problem remained and complainant could not use her mobile handset. The complainant got served legal notice upon the opposite parties in this regard, but to no effect. It is also alleged that the mobile handset is having manufacturing defect and it has broken down within the period of warranty. Due to manufacturing defect in the mobile handset, the complainant could not use it for the very purpose she had purchased it and she could not do academic and administrative work online and also could not supervise online research work of PHD scholars who tried to interact with her over mobile phone. Due to the said act and conduct of the opposite parties, the complainant has suffered from mental tension and physical agony besides professional loss and she could not use her mobile handset to the optimum due to defect and as such, she claims compensation of Rs. 1,00,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to refund the amount of handset i.e. Rs.49,900/- along with interest @ 18% p.a. from the date of payment till realization and pay compensation to the tune of Rs.1,00,000/- besides Rs.11,000/- as litigation expenses. Registered notice of complaint was sent to the opposite parties, but none appeared on behalf of opposite parties No. 1 & 2. As such, exparte proceedings were taken against opposite parties No. 1 & 2. Upon notice, opposite party No.3 put an appearance through counsel and contested the complaint by filing written reply raising preliminary objections that present complaint is bad for misjoinder of parties; opposite party No. 3 has unnecessarily been impleaded as party to the present complaint and that no cause of action arose to complainant. to file the present complaint. It has been pleaded that as per record of opposite party No. 2, the handset in question was perfectly working when it was returned to complainant on 18-05-02021 after rectifying/changing the 'PCB & battery' of the handset free of cost under warranty. The complainant till date has submitted her handset with opposite party No.2 on 24-04-2021, but on checking the handset no such defect of heating was found. Thereafter complainant has submitted her handset with opposite party No.2 on 18-05-2021 and reported the problem of over-heating. opposite party No.2 retained the handset and issued job sheet and replaced "PCB & Battery". The handset was delivered back to complainant in OK condition. After 18-5-2021 complainant has not reported any kind of problem in the handset. The opposite party No. 3 has further pleaded that the handset in question has been duly repaired and rectified free of cost under the warranty and handset was perfectly working when it was handed back to complainant by opposite party No.2 on 18-05-2021. The complainant took delivery of the handset after satisfying herself about the working of her handset. Thereafter complainant has not reported any kind of problem in her handset. The complainant knowing that her handset is in perfect working condition has filed the present complaint alleging totally false allegations. The opposite party No. 3 through this reply request this Commission to get the handset in question examined from an independent expert. The fact regarding perfect working condition of the handset has not been disclosed by the complainant and she is falsely alleging that mobile in question has not been repaired. The opposite party No. 3 has also pleaded that its obligation under warranty is subject to the warranty terms and conditions as mentioned in warranty card supplied with the product. The performance of the mobile phone depends upon the physical handling of the product. In the present case the handset has been mishandled by the complainant but as the handset was covered under warranty it was duly rectified free of cost and delivered back to complainant in OK condition on 18-05-2021. The liability of opposite party No. 3 is subject to terms and conditions of the warranty as mentioned in warranty card supplied with the product at the time of sale. No such assurance to replace the hand set or refund price is given. Further preliminary objections are that the complainant has not set out any legitimate ground entitling her for replacement of mobile phone with damages and litigation cost. The complainant has neither alleged an specific irrepaiable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of independent expert and qualified person of central Approved Laboratories in support of alleged submission as required under law. The Complainant claims the said mobile to be suffering from defects therefore, it is the legal duty, under the discharge of burden, upon the complainant to establish the same by independent technical expert report, but no such report has been adduced by the complainant till date. The opposite party No. 3 has further pleaded that it or its service centre has never denied after sales services to the complainant as per warranty terms and conditions. The complainant has filed the present complaint with malafide intention to extract money. On merits, opposite party No.3 reiterated its version as pleaded in preliminary objections and detailed above. After controverting all other averments of the complainant, the opposite party No. 3 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence her affidavit dated 18.8.2021 (Ex. C-4) and documents (Ex.C-1 to Ex.C-3 and Ex. C-5 to Ex. C-19). In order to rebut the evidence of complainant, opposite party No.3 tendered into evidence affidavit of Sandeep Sahjwani dated 6.8.2022 (Ex.OP-3/1) and documents (Ex. OP-3/2 to Ex.OP-3/6). We have heard learned counsel for the parties and gone through the record. The learned counsel for the parties have reiterated their stand as taken in their respective pleadings and detailed above. To prove her case, the complainant has placed on record her duly sworn affidavit alongwith Acknowledgement of Service Requests (Ex. C-2 & Ex. C-3). A perusal of Acknowledgement of Service Request (Ex. C-3) shows that defect in the mobile hand set was regarding Heating issue as per CX and remarks are 'repair completed'. However, further perusal of said document shows that this document does not bear signature of complainant to prove this fact that said product was fully repaired to the satisfaction of the complainant. However, the opposite parties have placed on record Acknowledgement of Service Requests of 24-4-2021 and 18-5-2021 as per which the same issue of heating is mentioned but there is no document or record on file that said defect was ever rectified by the opposite parties or the opposite parties obtained the acknowledgement of satisfaction from the complainant meaning thereby that the said hand set was having defect beyond repair although there is no report on record to prove the alleged manufacturing defect. However, when the facts and document speak itself regarding defect in mobile hand set, in that case, there is no need to obtain expert report. Therefore, in the present case, the complainant has fully established deficiency in service on the part of the opposite parties of having failed to repair the mobile hand set. Accordingly, present complaint is partly allowed and the opposite paries are directed to refund the amount of Rs. 49,900/- to complainant within 45 days from the date of receipt of copy of this order and incase said amount is not refunded to complainant within 45 days, in that case, an amount of Rs. 49,900/- shall carry interest @9% p.a. w.e.f. 29-11-2020 till realization. No order as to costs. 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 room. Announced : 12-04-2023 ( Lalit Mohan Dogra) President (Shivdev Singh) Member
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