DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.787 of 23-12-2014

Decided on 09-11-2015

Shaminder Singh S/o Darshan Singh R/o V.Jiwan Singh Wala, Tehsil Talwandi Sabo, District Bathinda.

........Complainant

Versus

1.M/s Jodha Telecom, Opp. Bus Stand, Talwandi Sabo, District Bathinda, through its Partner/Proprietor.

2.M/s Shri Ram Tele Services, SCF-5, Street No.6, Nai Basti, Bathinda, through its Incharge/Manager.

3.Samsung India Electronics Pvt. Ltd, B-1, Sector 81, Phase-2, Noida, District Gautam Budh Nagar (UP), through its Managing Director.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Harpal Singh, counsel for the complainant.

For Opposite parties: Sh.Thomas Bhangan, counsel for opposite party No.1.

Sh.Kuljit Pal Sharma, counsel for opposite party Nos.2

& 3

ORDER

M.P Singh Pahwa, President:-

1. The complainant Shaminder Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties M/s Jodha Telecom and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that he purchased one mobile handset model Galaxy Core for Rs.12,500/- vide bill No.500 dated 20.12.2013 from opposite party No.1, manufactured by opposite party No.3 with one year guarantee on behalf of opposite party No.3. Opposite party No.1 assured the complainant that if there would be any manufacturing defect in the mobile handset, it would be replaced with new one and if he would desire not to get replacement, opposite party No.3 would return back the entire amount within the guarantee period.

3. It is alleged that the mobile handset started giving problem of showing charging sign without putting it on charge and while photography, giving bad pixels. The complainant took his mobile handset to opposite party No.2, the authorized service centre of opposite party No.3. The engineers of opposite party No.2 kept the mobile handset and returned back the same after 3/4 days by stating that now it is OK and there would be no problem in it in future. The voucher issued by opposite party No.2 at the time of receiving the mobile handset was received back at the time of its delivery and is not available with the complainant. After sometime, the complainant again faced the same problem and took the mobile handset to opposite party No.2 and requested it to replace the mobile handset in question with new one as there is some manufacturing defect in it, but opposite party No.2 did not listen to him. The complainant visited opposite party No.2 after 4/5 days, its concerned persons handed over him the mobile handset by stating that now it is O.K. The complainant took back his mobile handset believing that opposite party No.2 might have removed the defect, if any.

4. It is further alleged that the problem remained existing in the mobile handset. On 15.11.2014, the complainant again took the mobile handset to opposite party No.2, it issued a voucher mentioning the remarks 'Auto Charging And Camera Bad Pixel'. The battery and cover were returned to the complainant. Opposite party No.2 handed over the mobile handset to the complainant after sometime by stating that it has removed the defect in it, but problem again persisted in it. The complainant told the concerned persons to give in writing regarding manufacturing defect in the mobile handset, but they stated that they got the service centre of opposite party No.3 and cannot give in writing.

On this backdrop of the facts, the complainant has alleged deficiency in service on the part of opposite parties and claimed Rs.2000/- as cost and Rs.12,500/- i.e. price of mobile handset in question alongwith interest @18% per annum and Rs.15,000/- as compensation due to mental tension, agony and loss of physical health. Hence, this complaint.

5. Upon notice, opposite parties appeared through their counsel and opposite party Nos.2 and 3 contested the complaint by filing their joint written version whereas opposite party No.1 had failed to file its written version within the statutory period.

6. In written version, opposite party Nos.2 and 3 raised the preliminary objections that the complainant has not sought the permission of this Forum U/s 11(2)(b) of 'Act' before instituting this complaint against them. The complaint is gross misuse of process of law and is liable to be dismissed U/s 26 of 'Act'. No cause-of-action has arisen in favour of the complainant and against opposite party Nos.2 and 3. The mobile handset in question has been mishandled by the complainant as it was water damaged when it was deposited with opposite party No.2 on 15.11.2014. There is no deficiency in service or breach of contract on the part of opposite party Nos.2 and 3. Opposite party Nos.2 and 3 never denied after sale services and are still ready to provide service to the complainant but on chargeable basis as the mobile handset is not covered under warranty being liquid damaged. The complainant brought his mobile handset with opposite party No.2 on 15.11.2014 with the problem of auto charging and camera issue. On internal inspection by opposite party No.2, the liquid was found in the internal parts of the mobile handset, due to this there were problem in it. As the mobile handset was not covered under the warranty, estimate of repair was given to the complainant, but he refused to get the same repaired on chargeable basis. The obligation of opposite party Nos.2 and 3 under warranty is to set right the mobile handset by repairing or replacing the defective parts only. The performance of the mobile handset depends upon the physical handling of the product, apart from installation and downloading of various mobile applications, games and other software. The problem as alleged in the complaint has occurred due to physical mishandling of the mobile handset by the complainant and there was no inherent defect in it. The internal parts of the mobile handset has been damaged due to liquid. This fact itself shows that the product has been badly mishandled. The complainant has not set out any legitimate ground entitling him for replacement of the mobile handset with damages and litigation cost.

7. On merits also, opposite party Nos.2 and 3 have controverted all other averments. However, it is not denied that the complainant purchased one mobile handset vide invoice No.500 dated 20.12.2013. It is admitted that there is warranty of one year subject to terms and conditions duly mentioned in the warranty card enclosed with the mobile handset at the time of its sale.

After controverting all other averments, opposite party Nos.2 and 3 reiterated their stand as set up in the preliminary objections and detailed above. In the end, opposite party Nos.2 and 3 prayed for dismissal of complaint.

8. Parties were afforded opportunities to produce evidence.

9. In support of his version, the complainant tendered into evidence affidavit of Complainant Shaminder Singh, (Ex.C1), photocopy of bill, (Ex.C2); photocopy of service request, (Ex.C3) and filed written arguments.

10. Opposite party No.1 had failed to produce any evidence despite last and various opportunities. Consequently, evidence of opposite party No.1 was closed by order on 24.8.2015.

11. Opposite party Nos.2 and 3 have tendered into evidence affidavit of Shriniwas Joshi dated 23.2.2015, (Ex.OP3/1) and photocopy of warranty card, (Ex.OP3/2).

12. We have heard learned counsel for parties and have gone through the written arguments filed by complainant.

13. Learned counsel for complainant has reiterated his stand as taken up in the complaint and detailed above. It is further submitted by learned counsel for complainant that the complainant purchased one mobile handset for Rs.12,500/- on 20.12.2013. It is admitted that there is warranty of one year on the mobile handset. The mobile handset caused problems. As such, opposite party No.2 was approached on different dates. Lastly, opposite party No.2 was visited on 15.11.2014 i.e. within the warranty period, but opposite party No.2 did not repair the mobile handset. This fact shows that the mobile handset is still within the warranty period and opposite party No.2 has failed either to repair the mobile handset in question or to replace it with new one. Therefore, there is deficiency in service and unfair trade practice on the part of opposite parties. As such, complaint be accepted and relief prayed for be granted.

14. On the other hand, learned counsel for opposite party Nos.2 and 3 has submitted that the complainant has himself placed on record job sheet dated 15.11.2014, (Ex.C3). After inspection by the engineer, it was remarked that the mobile is water damage and total estimate was Rs.1952/-. The water damage was not covered under the warranty. As per Condition No.7, in case of any damage to the product/misuse detected by the authorized service centre personnel, the warranty conditions are not applicable and repairs will be done subject to availability of parts and on a chargeable basis. The complainant has already used his mobile handset for almost one year and problem is stated at the fag end of warranty period. The report of service centre is not controverted by any expert report.

15. We have given careful consideration to these submissions.

16. It is not disputed that the complainant has to prove his case by affirmative evidence. The allegations levelled by the complainant are to be corroborated by some documents/evidence. Of-course, the complainant has purchased the mobile handset on 20.12.2013 and there is warranty of one year, which has expired on 20.12.2014. The complainant has placed on record job sheet dated 15.11.2014, (Ex.C3) to prove that the mobile handset could not be repaired and problem has again occurred on 15.11.2014, which is within the warranty period, but as per this document also, there was water damage to the mobile handset, which cannot be deemed as manufacturing defect. The complainant has not placed on record warranty conditions. Opposite party Nos.2 and 3 have brought on record warranty conditions. As per Condition No.7, in case of any damage to the product/misuse detected by the authorized service centre personnel, the warranty conditions are not applicable and repairs will be done subject to availability of parts and on a chargeable basis. Therefore, as per report of service centre, the damage is water damage, which cannot be termed as manufacturing defect. It can be only result of misuse. There is no rebuttal to this evidence. The complainant has not brought on record any expert evidence to prove that the mobile handset is having manufacturing defect and defect is not due to mishandling. Therefore in these circumstances, only inference is that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of opposite parties.

17. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost.

18. This case could not be decided within the statutory period due to heavy pendency.

19. Copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

09-11-2015

(M.P Singh Pahwa)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member