Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he has purchased a mobile phone of Samsung Company having Model A-20 with IEMI No.356926103197089 from Opposite Party No.1 vide bill No.AGST-272 dated 26.05.2019 for a sum of Rs.10,990/- including other charges and as such, the complainant is consumer of the Opposite Parties. Further alleges that after few days from its purchase i.e. in the month of June,2019, said mobile phone started giving various problems as the mobile set started hang during the call and having restarting problem during the use. The complainant approached Opposite Party No.2 i.e. service centre of Opposite Party No.1 to sought out the said problem. Opposite Party No.2 repaired the mobile phone and assured that in future it will not give any problem. But the said problem  still persists. Again the complainant visited the office of Opposite Party No.2 and again Opposite Party  No.2 repaired the mobile set and pretended that the mobile phone has been repaired completely, but the said mobile phone is giving same problem. In this regard, the complainant also approached Opposite Party No.1 various times, but  he refused to  sought out the said problem and started lingering on the matter on one pretext to another. In this way, the complainant suffered mentally and physically in the hands of the Opposite Parties and there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to replace the mobile set in question with new one or to refund the amount of Rs.10,990/- i.e. price of the mobile set alongwith interest @ 18% per annum from the date of purchase till its realization.

b)      The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.11,000/- may please be allowed.

Hence this complaint.

2.       Upon notice, none has appeared on behalf of  Opposite Party No.1 despite service, hence Opposite Party No.1 was proceeded against exparte vide order dated 12.03.2021.  Further, on notice to Opposite Party No.2, initially Sh.Avin, representative of Opposite Party No.2 appeared, but thereafter, none has appeared on behalf of Opposite Party No.2 nor filed the written version to defend its case and lateron, Opposite Party No.2 was also proceeded against exparte.  

3.       In order to prove his case, complainant tendered into evidence his affidavit Ex.C1 alongwith copy of bill Ex.C2 closed his evidence.

4.       We have heard the  Complainant and have carefully gone through the evidence on record.

5.       From the appraisal of the evidence on record, it becomes evident that the complainant has purchased a mobile phone of Samsung Company having Model A-20 with IEMI No.356926103197089 from Opposite Party No.1 vide bill No.AGST-272 dated 26.05.2019 for a sum of Rs.10,990/- including other charges Ex.C2, and as such, the complainant is consumer of the Opposite Parties. The case of the complainant is that after few days from its purchase i.e. in the month of June,2019, said mobile phone started giving various problems as the mobile set started hang during the call and having restarting problem during the use. The complainant approached Opposite Party No.2 i.e. service centre of Opposite Party No.1 to sought out the said problem. Opposite Party No.2 repaired the mobile phone and assured that in future it will not give any problem. But the said problem  still exists. Again the complainant visited the office of Opposite Party No.2 and again Opposite Party  No.2 repaired the mobile set and pretended that the mobile phone has been repaired completely, but the said mobile phone is giving same problem. In this regard, the complainant also approached Opposite Party No.1 various times, but  he refused to  sought out the said problem and started lingering on the matter on one pretext to another. In this way, the complainant suffered mentally and physically in the hands of the Opposite Parties and there is deficiency in service on the part of the Opposite Parties.To corroborate his aforesaid assertion, the Complainant has placed on record his duly sworn affidavit Ex.C1 alongwith copy of bill Ex.C2.

6.       It is not disputed that the complainant has purchased a mobile phone of Samsung Company having Model A-20 with IEMI No.356926103197089 from Opposite Party No.1 vide bill No.AGST-272 dated 26.05.2019 for a sum of Rs.10,990/- including other charges Ex.C2. It is also not the denial of the case that within a few days i.e. in the month of June, 2019, said mobile set started giving problems such like hanging and  started giving various problems as the mobile set started hang during the call and having restarting problem during the use. As such, since the date of purchase of the Mobile Set  in question, it is giving problems such like  hanging as well as start problem etc. Initially, the complainant got the same checked up through the authorized service centre of the company i.e. Opposite Party No.2, but after some setting, said Service Centre of the Opposite Party No.1 returned the Mobile Set  in question  to the complainant, but however, since the date of its purchase, the complainant is not satisfactory from the Mobile Set  in question  purchased by him from the company. On the other hand, Opposite Party No.1 also refused to listen to the grievance of the complainant and hence,   there is deficiency in service and Unfair Trade Practice on the part of the opposite parties. The complainant further contended that  due to the non functioning of the Mobile Set  in question, the complainant is suffering badly as the said mobile set was purchased by him for the study of his son during covid-19 period  because there is manufacturing defect in the mobile set in question and hence, the aforesaid acts of the Opposite Parties in not providing the best services to the complainant without any reason is an act of deficiency in services, mal practices, Unfair Trade Practice and has caused lot of mental agony, harassment, inconvenience  besides the study loss of his son. Though, such loss can not be compensated in the shape of money, but still the complainant claims a sum of Rs.50,000/- as damages for causing him mental tension and harassment and made prayer that the amount of the product may please be refunded alongwith interest and compensation and hence it is prayed that there is deficiency in service writ large on the part of the opposite parties.  

7.       On the other hand, none has come present on behalf of the Opposite Parties nor filed any written reply to defend its case.   The case of the complainant is that the Mobile Set  in question  is having manufacturing defect and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

 “when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

 In the instant case, the mobile set  in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also produced on record the copy of bill Ex.C2.  The evidence produced on record  by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.  

8.       So, from the entire unrebutted evidence produced by the complainant on record, it stands fully proved on record that the mobile set  of the complainant was suffering from inherent defects, which did not admit repair/ rectification. As argued above by the complainant that he has been harassed badly all the time without any reasonable cause  and made prayer that the amount of the product may please be refunded alongwith interest and compensation. The aforesaid evidence produced by the complainant has gone unrebutted and unchallenged through any cogent and convincing evidence on record as  the Opposite Parties,  despite due service, did not opt to appear and contest the proceedings.  In this way, the Opposite Parties have impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Parties have no defence to offer or defend the complaint.  Further the complainant has prayed for refund the amount of mobile set  and also prayed to pay Rs.50,000/- as compensation for causing him mental tension and harassment and Rs.11,000/- as litigation expenses. But however, the claim for compensation to the tune of Rs.50,000/-  is concerned, the same appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.3,000/- and we award the same accordingly.

9.       In views of the aforesaid facts and circumstances of the case, we allow the complaint of the complainant against the Opposite Parties jointly or severally and the Opposite Parties are  directed to refund the amount of Rs.10,990/- (Rupees ten thousands nine hundred and ninety only) i.e. price of the mobile set in question (against the return of old mobile set in question) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 09.08.2019 till its actual realization.  The Opposite Parties are also directed to pay Rs.3,000/- (Rupees three thousands only)  as lumpsum compensation to the complainant. Compliance of this order be made by the Opposite Parties jointly or severally within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to  get the order enforced through the indulgence of this Commission.   Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.  

10.     Reason for delay in deciding the complaint.

This complaint could not be decided within the prescribed period because the government has not  appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated: 21.12.2021.