DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/426/2020

Date of Institution : 28.12.2020

Date of Decision : 21.10.2021

Sarbjeet Singh aged about 30 years son of Lakhwinder Singh resident of Dhanaula Road, Prem Nagar, Barnala-148101. …Complainant

Versus

1. Samsung India Ltd., 6th Floor, DLF Centre, Sansad Marg, 6th Floor, DLF Centre, Sansad Marg, New Delhi-110001 through its CEO. 

2. M/s RK Traders, 22 Acre, Barnala-148101 through its Proprietor/ partner.

3. M/s Kamlesh Telecom (Service Centre), Opp. Bus Station, Barnala 148101 through its Proprietor/Partner/Incharge.

…Opposite Parties

Complaint under Consumer Protection Act

Present: Sh. NK Singla counsel for complainant.

Sh. Chander Bansal counsel for opposite party No. 1.

None for opposite party No. 2. 

Opposite party No. 3 exparte. 

Quorum.-

1. Sh. Ashish Kumar Grover : President

2. Smt. Urmila Kumari : Member

3. Sh. Navdeep Kumar Garg : Member

(ORDER BY ASHISH KUMAR GROVER PRESIDENT):

    The complainant Sarbjeet Singh filed the present complaint under Consumer Protection Act against Samsung India Limited, New Delhi and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that the complainant purchased one mobile set of Samsung make Model S20 bearing IMEI No. 354460112788300 for Rs. 66,200/- in cash from opposite party No. 2 vide invoice dated 8.3.2020 which has been manufactured by opposite party No. 1 and full warranty of one year was given to the complainant from the date of purchase. But on reaching home the memory card slot of said mobile was not working, so the complainant handed over the said mobile to opposite party No. 3 as per advice of opposite party No. 2 on 20.3.2020 and acknowledgement was also given by the opposite party No. 3. When complainant visited the opposite party No. 3 who told the complainant that said mobile has been tampered with by some mechanic who was not authorized to do so but said mobile has neither been tampered nor complainant visited any mechanic for removal of said defect. The complainant requested many time to the opposite parties to replace the said mobile with new one of same model but to no effect which amounts to deficiency in service on the part of the opposite parties. The complainant also got served a legal notice dated 28.9.2020 upon the opposite parties but with no result. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite parties may be directed to replace the said mobile with a new one of the same model or to pay the price of the mobile set amounting to Rs. 66,200/- alongwith interest.  

2) To pay Rs. 1,00,000/- on account of compensation for mental agony and   harassment. 

3) To pay Rs. 20,000/- as litigation expenses.  

4) Any other fit relief may also be given. 

3. Upon notice of this complaint, the opposite party No. 1 filed written reply taking preliminary objections that present complaint is bad for mis joinder and non joinder of parties and no cause of action arose to the complainant to file the present complaint against the answering respondent. The handset in question was submitted with the opposite party No. 3 on 20.3.2020 and complainant reported the problem memory card slot not work on checking the handset by the technical expert with the help of AMP meter (service equipment) to note the resistance reading, the reading in the meter showed that handset has been physically tampered/intentionally damaged by some external source which is warranty void condition and repair is to be done on chargeable basis. The estimate was given to the complainant but he refused to pay the repair charges and even refused to take back his handset from the opposite party No. 3. There is no deficiency in service or breach of contract on the part of the answering opposite party. The technical engineer reported that electric current has been passed through the handset due to which internal parts i.e. mother board got damaged due to high electric current. The complainant concealed the true and material facts and not come to this Commission with clean hands. As per warranty terms and conditions the handset of the complainant is out of warranty as it has been intentionally damaged. 

4. On merits, it is admitted that there is one year warranty subject to warranty terms and conditions as mentioned in warranty card supplied with the product and as per warranty terms physical damage, tampering of the handset is a warranty void condition. It seems that complainant has taken the handset to some non Samsung 3rd party for repair rectification and said person has damaged the handset or complainant himself tampered the handset. It is admitted that handset is lying with opposite party No. 3 since 20.3.2020 because complainant is not taking back his handset from opposite party No. 3 despite various calls and reminders.  They further submitted that there is no deficiency in service and any unfair trade practice on the part of the opposite parties. Lastly, they prayed for the dismissal of the present complaint with costs.   

5. The opposite party No. 2 also filed written statement taking legal objections that the complainant has got no cause of action or locus standi to file the present complaint against the answering opposite party. 

6. On merits, it is admitted that complainant approached the answering opposite party for the alleged defect in the mobile and answering opposite party advised the complainant to approach opposite party No. 3 for removal of said defect. The memory card slot of mobile does no work which is solely due to manufacturing defect in the said phone. It is further submitted that as per terms and conditions of the bill dated 8.3.2020 company is liable for any dispute in the Consumer Commission. Lastly, the opposite party No. 2 also prayed for the dismissal of the present complaint with costs.

7. The opposite party No. 3 did not appear before this Commission despite service on 8.1.2021, so the opposite party No. 3 was proceeded against exparte vide order dated 2.2.2021. 

8. In support of his complaint, the complainant tendered into evidence copy of bill dated 8.3.2020 Ex.C-1, copy of specification of mobile Ex.C-2, warranty card Ex.C-3, copy of acknowledgment of service request Ex.C-4, copy of legal notice Ex.C-5, postal receipts Ex.C-6 to Ex.C-8, copy of reply of notice Ex.C-9, affidavit of complainant Ex.C-10 and closed the evidence. 

9. To rebut the case of the complainant, the opposite party No. 1  tendered in evidence affidavit of Sandeep Sahijwani Ex.OP-1/1, copy of reply to legal notice Ex.OP-1/2, copy of list Ex.OP-1/3, photographs Ex.OP-1/4 and Ex.OP-1/5, copy of warranty card Ex.OP-1/6, copy of technical report Ex.OP-1/7, copy of photographs Ex.OP-1/8 to Ex.OP-1/10, affidavit of Ajaypreet Singh Ex.OP-1/11 and closed the evidence. The opposite party No. 2 also tendered in evidence affidavit of Piyush Goyal Ex.OP-2/1 and closed the evidence. 

10. We have heard the learned counsel for the parties and have gone through the record on the file. 

11. The complainant has tendered in evidence copy of bill dated 8.3.2020 Ex.C-1 and warranty card Ex.C-3. These documents established that the mobile set in question was well within the warranty period. It is also cleared from Ex.C-4 that complainant has approached opposite party No. 3 for removal of defect in the mobile set in question. This fact is also admitted by the opposite party No. 1. The complainant had also issued legal notice through his counsel Sh. NK Singla Advocate dated 28.9.2020 Ex.C-5 and the opposite party No. 1 had also replied to the said legal notice Ex.C-9 in which opposite party No. 1 mentioned that “ it would not be possible for us to process any replacement/refund request for the product without examination of the same.”, which established that the stand of the opposite party No. 1 in written version regarding the physical tampered/intentionally damaged the mobile set in question by some external source is vague, as opposite party No. 1 admitted in their reply to legal notice dated 30.10.2020 Ex.C-9 that replacement/refund request for the product without examination of the same would not be possible. It clearly established that the opposite party No. 1 had not checked the mobile phone in question. 

12. Further, the mobile phone in question is still lying in the possession of opposite parties No. 1 and 3 and opposite party No. 1 admitted this fact in their written version. It is also mentioned in the written version of the opposite party No. 1 that the complainant has not taken back the mobile handset from the opposite party No. 3 despite various calls and reminders but to prove this fact the opposite party No. 1 has not tendered any document or evidence. 

13. The copy of technical report Ex.OP-1/7 tendered by the opposite party No. 1 is not adequate as the details of the defect are not mentioned in the said report, rather it is mentioned in the technical report Ex.OP-1/7 in the column of Current Defect Symptom that “display and back glass break”. The affidavit of Ajaypreet Singh Ex.OP-1/11 tendered by the opposite party No. 1 is also of the employee of the opposite parties No. 1 and 3 and no qualification certificate of Ajaypreet Singh was tendered to prove the competency of the Ajaypreet Singh. 

14. The opposite party No. 2 filed separate version in which opposite party No. 2 admitted that the complainant has approached the opposite party No. 2 with the alleged defect in the mobile and opposite party No. 2 also admitted that they advised the complainant to approach the opposite party No. 3. It is also mentioned in the said reply that when the memory card slot of the mobile does not work, it is solely due to the manufacturing defect in the said mobile set which also established that there is manufacturing defect in the mobile set in question. 

15. In view of the above discussion, it is proved on the file beyond any doubt that there is clear cut deficiency in service and unfair trade practice on the part of the opposite parties. Accordingly, present complaint is partly allowed and opposite parties are directed to replace the mobile set of the complainant with a new one of the same model. The opposite parties are also directed to pay Rs. 5,000/- to the complainant as compensation for mental tension and harassment and Rs. 3,500/- as costs and litigation expenses. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order, failing which the opposite parties are directed to refund the billing amount of the mobile set i.e. Rs. 66,200/- to the complainant alongwith interest at the rate of 7% per annum from the date of purchase i.e. 8.3.2020 till its actual realization. All the opposite parties jointly and severally liable to comply with this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

        21st Day of October 2021

 

 

            (Ashish Kumar Grover)

            President

              

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member