DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 672/2016
Date of Institution : 26.10.2016
Date of Decision : 14.08.2017
Kuldeep Singh aged about 25 years son of Joginder Singh resident of Patti Salema, Village Dhaula, Tehsil Tapa, District Barnala.
…Complainant
Versus
M/s Kamlesh Telecom opposite main Bus Stand, Barnala, through its proprietor.
Samsung India Electronics Pvt. Ltd. Head Office 20th to 24th Floor, Two Horizen Centre, Golf Course Road, Sector-43, DLE PH-V, Gurgaon, Haryana-122202, through its Managing Director.
Sahil Mobile Hut, Handiaya Bazar, Barnala through its proprietor.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. J.K. Kapil counsel for complainant.
Sh. A.S. Sandhu counsel for opposite parties No. 1 & 2.
Opposite party No. 3 exparte.
Quorum.-
1. Shri S.K. Goel : President.
Ms. Vandna Sidhu : Member.
Sh. Tejinder Singh Bhangu : Member.
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Kuldeep Singh has filed the present complaint under Consumer Protection Act, 1986 (hereinafter called as Act) against M/s Kamlesh Telecom and others (hereinafter called as opposite parties).
2. The facts leading to the present complaint are that the complainant purchased mobile set of opposite party No. 2 Model Fire Samsung J5, IMEI No. 356823071169556 from the opposite party No. 3 vide invoice No. 1760 dated 9.1.2016 for Rs. 12,000/- in cash. The said dealer also gave a warranty of 12 months.
3. It is alleged that the said mobile set started battery backup problem in September 2016 and on 23.9.2016 he visited the office of authorized Customer Care Centre (opposite party No. 1) for repairing of the mobile set. Opposite party No. 1 repaired the mobile set on the same day. However, the said mobile set restarted the same problem after some days. Again on 10.10.2016 the complainant visited the Customer Care Centre of opposite party No. 1 for repairing the same. But the opposite party No. 1 did not repair the mobile set on the same day and told the complainant to hand over the mobile set and the problem will be solved within two days and he handed over the set vide manual job sheet dated 10.10.2016. But on 13.10.2016 opposite party No. 1 handed over mobile set to the complainant without solving the problem and it was told that the said mobile set was not repairable and the warranty period was also expired. It is alleged that the mobile set was carrying the warranty of 12 months and it was within the warranty period. By refusing to repair the mobile set, it amounts to unfair trade practice and deficiency in service on the part of opposite parties. Hence, the present complaint is filed seeking the following reliefs.
To refund Rs. 12,000/- price of mobile set alongwith interest.
To pay Rs. 20,000/- as compensation and Rs. 5,000/- as litigation expenses.
4. Upon notice of this complaint, the opposite parties No. 1 & 2 appeared and filed written version taking preliminary objections interalia on the grounds of maintainability, bad for mis-joinder of necessary parties, this Forum has no territorial jurisdiction, misuse of process of law and there is no deficiency in service on their part. On merits, it is submitted that the complainant visited the opposite party No. 1 on 28.9.2016 and mobile set was checked and no problem of poor battery backup was found and the mobile set was perfectly working and therefore handset was returned to the complainant on the same day. It is further submitted that thereafter the complainant never approached the opposite party No. 1 on 10.10.2016 and therefore the question of submission of handset with opposite party No. 1 does not arise. However, they admitted that warranty period was for one year subject to warranty terms and conditions. It is further submitted that the complainant has neither alleged any specific irreparable manufacturing defect and inferior quality nor led any documentary evidence i.e. authenticated report of an expert. That in the absence of any independent expert evidence the claim cannot be allowed. They have denied the other allegations of the complaint and prayed for the dismissal of complaint.
5. Initially one Phool Chand Jain appeared in person on behalf of opposite party No. 3, but lateron none appeared on behalf of opposite party No. 3 and was proceeded against exparte.
6. In order to prove his case, the complainant tendered into evidence his own affidavit Ex.C-1, copy of bill Ex.C-2, copy of Job Card Ex.C-3 and closed the evidence.
7. In order to rebut the case of the complainant, the opposite parties No. 1 & 2 tendered into evidence affidavit of Anindya Bose Deputy General Manager Ex.O.P.1.2/1 and closed the evidence.
8. We have heard the Ld. Counsel for the parties and have gone through the record.
9. The first point is to be determined whether the mobile in question is having a manufacturing defect and therefore, it is liable to be replaced with a new one or to refund the price of the said mobile.
10. In order to prove that the said mobile set is having manufacturing defect, the complainant has placed on record his affidavit Ex.C-1, wherein he has stated that he purchased the said mobile set vide invoice No. 1760 dated 9.1.2016 for Rs. 12,000/- and it started battery backup problem in September 2016. The complainant further stated that on 23.9.2016 he visited the Customer Care Centre of opposite party No. 1 for repairing the same and the mobile set was repaired on the same day. He further stated that thereafter the mobile set again restarted the same problem and he approached the opposite party No. 1 on 10.10.2016. The complainant further stated that the opposite party told him that the mobile set is not repairable and warranty is already been expired and opposite party failed to repair/change the mobile set. Apart from his affidavit, the complainant has placed on record invoice dated 9.1.2016 Ex.C-2 showing the purchase of mobile set for Rs. 12,000/- with warranty of 12 months. Apart from that the complainant has placed on record job card Ex.C-3 showing the problem “battery backup”. On the basis of the said evidence, the Ld. Counsel for the complainant has contended that officials of the opposite party No. 1 told that the mobile set was not repairable. Ld. Counsel further contended that it is sufficient to presume that since the mobile set is not repairable, therefore it has manufacturing defect and therefore the same is liable to be replaced with a new one or to pay the price of the said mobile set.
11. On the other hand, the opposite parties have specifically denied any such report. It is further contended that in the absence of any expert evidence, it cannot be held that the mobile set was suffering from manufacturing defect.
12. Admittedly, the complainant has not placed on record any technical report to show that the mobile set in question is suffering from manufacturing defect. Moreover, no affidavit or any document has been placed on record of the official of the opposite party No. 1 to prove the plea that the said mobile set in question was not repairable and it was having manufacturing defect.
13. In case Sushila Automobiles Versus Dr. Birendra Narain and others 3 (2010) CPJ-130 (NC) wherein it was observed as.-
“At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential in put. The Hon'ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in his backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car has been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party- manufacturing company, it will not by itself amount manufacturing defect.”
14. Further in case Jose Philip Mampilli Versus Premier Automobiles Ltd. and Another , I (2004) CLT-855 the principle of law laid down was to the effect that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced under warranty.
15. On the basis of the above discussion and citations as referred to above, this Forum is of the view that the complainant has failed to prove manufacturing defect, therefore, the opposite parties are not under obligation to replace the said mobile in question or to refund the price of the same.
16. Now the next question arises whether the mobile set in question is liable to be repaired as it is within the warranty period. Perusal of the evidence shows that the mobile in question is purchased on 9.1.2016. It is also not in dispute by the opposite parties that the complainant approached them on 23.9.2016 for the alleged problem of poor battery backup. Ex.C-3 is the job card, which shows that the complainant approached the opposite parties within the period of 12 months. Perusal of the invoice Ex.C-2 showing the warranty of 12 months, therefore the mobile set was within the warranty period. It is also worth mentioning here that the opposite parties have not led any evidence to prove that the complainant has violated the terms and conditions of warranty. Opposite parties have also failed to prove that this mobile set was not within the warranty period. The opposite parties have also not placed on record any report by Engineer/Mechanic to indicate that the defect in the device was due to the mishandling by the complainant.
17. In another case III (2016) CPJ-126 Rahul Bank Versus Dell India Pvt. Ltd and Another, a Laptop was purchased by the complainant and the complainant within the warranty period approached the seller for repair but repair was not done. District Forum directed to repair the Laptop of the complainant without fail or replace it if it cannot be repaired. The Hon'ble State Commission also confirmed the view of the District Forum.
18. In view of the law laid down in the above said citations this Forum is of the view that the opposite parties cannot refuse the repair of the set in question.
19. As a result of the above discussion, the present complaint is partly accepted against the opposite parties No. 1 to 3 to the extent that the opposite parties No. 1 to 3 are directed to repair the mobile in question of the complainant within the period of 45 days from the date of the receipt of the copy of this order. If they find that some parts of the device cannot be made in working condition and it is beyond repair then the opposite parties No. 1 to 3 are directed to replace the said defective parts with a new one. The opposite parties No. 1 to 3 are further directed to pay Rs. 2,000/- to the complainant as compensation for causing mental tension and harassment and Rs. 1,100/- as litigation expenses. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
14th Day of August, 2017.
(S.K. Goel)
President.
(Vandna Sidhu)
Member.
(Tejinder Singh Bhangu)
Member.
