ORDER

08.02.2024

Sh. Sanjay Kumar, President

1. In brief facts of the present case are that complainant purchased a mobile phone handset from the OP1 after paying Rs.16,000/- on 26.12.2014 with one year warranty against cash memo/invoice no. SAV-02168. The said mobile was purchased on installment which was totally paid.
2. It is stated that only one week later phone began to create problem as automatically hanged and complainant approached to OP1 who advised to contact with the service centre. But due to business complainant could not approach at that time. It is further stated that in the month of February 2015 complainant visited at the authorized service centre of the Samsung but he was shocked and surprised to know that the OP2 will not give service as the cash memo is forged and fabricated and hence the OP2 did not repair the mobile handset.
3. It is stated that the mobile could not rectified and complainant had to rush to OP1 and made a complaint for issuing the forged and fabricated bill to complainant after receiving a huge amount for the mobile handset. It is further stated that OP issued a document and on the request of complainant the OP was annoyed and quarreled. The complainant had to call to police through 100 no. The police officials came and the complainant narrated all the story then he was advised that go to consumer court and file a case against the OP1 and there is no need to intervene by the police. It is further stated that the OP told to complainant that he would send an email regarding clarification about bill and approach service centre namely Aditya Infocom Pvt. Ltd. Building no.14, Basement, Central Market (Deep Market) Near Hanuman Mandir, Ph-1, Ashok Vihar, Delhi-52. Despite this it was again shocking and surprising that again complainant was informed about wrong billing/cash memo/date.
4. It is stated that OP1 made unfair trade practice with the OP and issue a forged and fabricated bill and this is the reason mobile handset was not repaired at both the service centre as mentioned above. It is clear deficiency in service also, as defined in Consumer Protection Act 1986. It is further stated that OPs are severally and jointly responsible for the complaint and liable to refund the amount with compensation of Rs.50,000/-, when complainant was in need of the service of the OPs they failed for which they were duly bound. During that period complainant could not contact with his family members, relatives and friends. Being a consumer, complainant was entitled for compensation in view of above mentioned facts and circumstances and as on account of physical and mental harassment under the law of torts. It is stated that complainant has no other option but to approach this Hon’ble Forum for adjudicate the matter.
5. It is stated that complainant is seeking directions to OP to refund the purchasing amount of Rs.16,000/- with interest @18% p.a till the date of its realization, to pay compensation of Rs.50,000/- for mental agony, physical harassment and conveyance etc, to pay litigation cost and expenses Rs.7,000/- and any other and further order in favor of complainant in the interest of justice and equity.
6. OP1 filed WS and taken preliminary submissions that the complainant purchased one Samsung Mobile on 26.12.2014 from OP1 vide invoice no.SAV-02168. It is stated that the complainant was duly informed about the cost and warranty terms of the said product after being fully satisfied by all the information the complainant purchased the said product. It is further stated that complainant has filed the present complaint without any cause of action against the OP1 in order to extract money in form of compensation from OP1. Hence the present complaint is liable to be dismissed on this short ground alone.
7. It is stated that present complaint is liable to be dismissed on the ground that there is no prima facie case against the OP1. The complainant out of pure greed and nefarious intentions has filed the aforesaid complaint and the complainant is wrongfully trying to extract compensation from the OP1 without any deficiency of services on the part of OP1. It is further stated that complainant has filed the present complaint purely out of voracity to satisfy its ulterior motives on false and frivolous grounds before this Hon’ble Forum just to cause harassment and the present complaint is one of the pressurizing tactics adopted by the complainant to force the respondent to accede to its illegal demands.
8. It is stated that the complainant has not come with clean hands, therefore, the complaint is liable to be dismissed for being preferred in the absence of deficiency on the part of OP1. It is further stated that complainant is adamant to be compensated by abusing the provisions of the applicable Consumer Protection Act and also wasting the valuable time of this Hon’ble Forum, keeping this view in mind, it is respectfully submitted that the present complaint is liable to be dismissed with a heavy cost.
9. It is stated that present complaint has been filed without any cause of action against the OP1 and the same is liable to be dismissed for non-disclosure of the action. It is further stated that there has arisen no cause of action in favor of the complainant to file the present complaint against the OP1 and as such the present complaint is liable to be dismissed on tills score alone. The complainant has failed to state as to how the cause of action arose in favor for filing the present complaint against the OP1 in the absence of any deficiency on its part. It is stated that complainant has not come with clean hands and the same is liable to be dismissed. Therefore, the complaint is liable to be dismissed for being preferred in the absence of deficiency on the part of OP1. It is further stated that the complainant has failed to prove any deficiency on the part of OP1.
10. On merit all the allegations made in the complaint are denied by OP1 and reiterated the contents of preliminary submissions. It is stated that complainant was told to visit authorized service centre of the company M/s Aditya Infocom Pvt. Ltd. Ashok Vihar, but thereafter complainant never informed to OP1 that his mobile repaired. It is stated that there is no deficiency or unfair trade practice on the part of OP1. It is stated that present complaint is liable to be dismissed.
11. Complainant filed rejoinder to WS of OP1 and denied all the allegations made therein. The complainant reiterated contents of the complaint and stated that complainant is entitled to all the relief claimed in the complaint.
12. OP3 filed WS and taken preliminary objections that the present complaint is liable to be dismissed on the ground that there is prima facie no case against the OP3. The complainant out of pure greed and nefarious intentions has filed the aforesaid complaint and is wrongfully trying to extract compensation from the OP3 without any deficiency of service on part of OP3.
13. It is stated that there has arisen no cause of action in favor of the complainant to file the present complaint against OP3 and as such the present complaint is liable to be dismissed on tills score alone. The complainant has failed to state as to how the cause of action arose in its favor for filing the present complaint against OP3 in the absence of any deficiency on its part. It is further stated that as per complaint the complainant had purchase a Samsung mobile from OP1 for Rs.16,000/- on 26.12.2014 in good conditions and after having full satisfaction with the said handset. It is stated that the present complaint has been filed without any cause of action and the same is liable to be dismissed for non-disclosure of cause of action.
14. It is stated that there has arisen no cause of action in favor of the complainant to file the present complaint against the OP3 and as such the present complaint is liable to be dismissed on tills score alone. The complainant has failed to state as to how the cause of action arose in favor for filing the present complaint against the OP3 in absence of any deficiency on its part. It is further stated that the complainant is guilty of ‘suggestio falsi’ and ‘suppressio veri’ in as much as the complainant has deliberately concealed various material facts from this Hon’ble court, so on this score alone the present complaint is  liable to be dismissed. It is stated that complainant has filed the present complaint purely out of voracity to satisfy its ulterior motives on false and frivolous grounds before this Hon’ble Forum just to cause harassment and the present complaint is one of the pressurizing tactics adopted by the complainant to force the OP3 to accede to its illegal demands. OP3 referred to the case of Tata Motors vs Deepal Goyal RP No.2309/2008 (NC), Interglobe Aviation Ltd. Vs N. Satish Chand (2011) 7 S.C.C 463.
15. It is stated that complainant is adamant to be compensated by abusing the provisions of consumer protection act although OP3 in order to provide the customer service have taken best possible methods to resolve the present complaint. It is stated that present complaint is liable to be dismissed.
16. On merit all the allegations are denied and contents of preliminary objections reiterated. It is stated that complainant had purchased a samsung J-7 mobile from OP1 for Rs.14,500/- on 12.02.2016 in good conditions and after having full satisfaction. It is further stated that complainant approached to the OP2 and demanded to issue a D.O.A (dead on arrival) against the mobile phone which the OP2 refused to issue without examining the product. It is stated that OP3 never made any call to the complainant.
17. It is stated that OP3 never gave any assurance of replacement of product to the complainant without prior examination of the product. It is further stated that complainant never deposited his handset for repair, inspite of assurance given by the OP2 that the issue can be resolved if it has only after examination of the product but complainant was adamant for replacement of the product. It is further stated that there is neither any deficiency of service nor any manufacturing defect in the mobile and as per policy of the company if product can be repaired than it cannot be replaced. It is further stated that OP3 is always ready to resolve the issue as per there terms and conditions of the warranty and complainant failed to prove any manufacturing defect in the product and also not attached any job sheet or documentary evidence. It is stated that present complaint is liable to be dismissed.
18. Complainant filed rejoinder to WS of OP3 and denied all the allegations made therein. The complainant reiterated contents of the complaint and stated that complainant is entitled to all the relief claimed in the complaint.
19. OP2 neither appeared nor filed WS and proceeded ex parte vide order dated 05.03.2018.
20. Complainant filed evidence by way of his affidavit and reiterated contents of the complaint. Complainant relied on copy of cash memo/invoice no.SAV no.02168 Ex.CW1 and another document Ex.CW1/2.
21. OP1 filed evidence by way of affidavit of Manoj Kumar AR. In the affidavit contents of WS reiterated.
22. OP3 filed evidence by way of affidavit of Anindya Bose AR. In the affidavit contents  of WS reiterated.
23. Written arguments filed on behalf of complainant, OP1 and OP3.
24. We have heard complainant in person and Sh. Anurag Kumar counsel for OP3. OP1 and 2 neither appeared nor advance oral arguments.
25. It is admitted case of the parties that complainant purchased mobile phone make Samsung Grand2 from OP-1 on 26.12.2014 against  invoice no.SAV-02168. The complainant alleged that the invoice no. SAV02168 found to be forged in the month of February, 2015 when he had visited authorized service center of Samsung for repair. The OP-1 Sargam India Electronic Ltd. in the reply denied the fact alleged by complainant and taken the stand that invoice is correct and original. The original invoice filed on record. We have seen the original invoice and compared with the photocopy filed by complainant. The original invoice filed by OP-1 is totally different from the invoice photocopy filed by complainant. The signature on both the invoices are of different person. The original invoice filed by OP-1 mentioned details RBL CODE-CCK7HS611A, which is missing in the photocopy filed by complainant. The photocopy filed by complainant Ex.CW1 of invoice mentioned ORDER NO. NARRATION ARUN/SAMSUNG SF19611452  which is missing in the original invoice filed by OP-1. However, in both the invoices it is mentioned that it is financed by Bajaj Finance for Rs. 10,960/-. It is pertinent to mention here that OP-1 also filed on record photocopy of delivery challan RW1/B which mention the details of mobile handset sold to complainant received on 19.12.2014. The EMI no.3532020266210886 is mentioned in the delivery challan, service center Rameshwar Traders document RW02, original invoice RW3.
26. The OP-3 Samsung service center in the reply also admitted the fact with regard to purchase of Samsung Grand2 mobile phone by complainant on 26.12.2014. The plea taken by OP-3 is that complainant was adamant for issuance of document mentioning D.O.A (Dead on arrival) but OP-2 refused as per company policy. The complainant never deposited mobile handset with OP-2 as no job sheet filed on record. The OP-2 Rameshwar Traders remained ex-parte therefore the facts are not crystal clear with regard to allegations of complainant of forged and fabricated invoice no. SAV02168. As per complainant he also visited Aditya Infocom Pvt. Ltd., building no.14 Basement, Central market (Deep Market) near Hanuman Mandir, Ph-1, Ashok Vihar as per instructions of OP-1. There also complainant informed about the wrong billing/cash memo date. It is pertinent to mention here that complainant filed EXCW1/2 checking sale date with EMI which shows dated 13.11.2014, Model details SMG7102 and EMI no.353202066210886. The RW02 filed by OP-1 also shown the same details whereas the delivery challan details dated 18.12.2014 also mention the same EMI no.
27. In view of above observation and discussion as per record it is established that the invoice ExCW1 SAV02168 dated 26.12.2014 issued to complainant and RW3 original filed by OP-1 are two different invoices. The OP-1 failed to establish that the original invoice filed on record was the same issued to complainant. The details observed and mentioned herein above to both the invoices Ex.CW1 and ExRW3 are different which established that the complainant failed to get repair services from OP-2. The complainant established that OP-1 adopted unfair trade practice and correct and legal invoice not issued to complainant which resulted in non repair of mobile phone in February, 2015. The OP-2 service center and OP-3 Samsung India manufacturer are not having any role for redressal of complaint of complainant which originate due to doubtful invoice issued to complainant by OP-1.
28. On the basis of above observation and discussion we hold OP-1 Sargum India Electronics Pvt. Ltd. guilty of unfair trade practice and directed to pay Rs. 16,000/- along with 6% interest cost of the mobile and further pay Rs. 8,000/- as compensation and litigation expenses from the date of filing till realization.
29. The OP-1 is directed to comply the order within 30 days of the receipt of the order failing which OP-1 will be liable to pay the aforesaid amount along with interest @ 9% P.A from the date of receipt of order till realization. File be consigned to record room.
30. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  08.02.2024.

SANJAY KUMAR                                                                            RAJESH

       PRESIDENT                                                                               MEMBER