Punjab

Ludhiana

CC/17/40

Rekha Goel - Complainant(s)

Versus

Sethi Telecom System - Opp.Party(s)

Gurjit Singh Adv.

01 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 40 of 19.01.2017

   Date of Decision            :   01.08.2017

 

1.Rekha Goel aged about 44 years w/o Sh.Sushil Goel Proprietor of M/s Ambay Enterprises, 14, Ist Floor, Central Market, Gill Road, Ludhiana.

2.M/s Ambay Enterprises, 14, Ist Floor, Central Market, Gill Road, Ludhiana through its Proprietor Rekha Goel aged about 44 years w/o Sh.Sushil Goel.

 

….. Complainants

Versus

1.Sethi Telecom System, Baba Than Singh Chowk, Samrala Road, Ludhiana through its Manager.

2.M/s Kiran Mobile Care, Shop No.4-5, Ist Floor, Service Centre, Chopati Market, Fountain Chowk, Ludhiana.

3.Samsung India Electronics Pvt. Ltd., 3^rd and 4^th Floor Vipul Tech. Square, Sector 43, Gurgaon-122009 through its Chairman/MD/Director/Incharge.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainants             :         Sh.G.S.Kalyan, Advocate

For OP1 and OP2            :         Ex-parte

For OP3                           :         Sh.Govind Puri, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant no.1 Smt.Rekha Goel is the proprietor of complainant no.2 concern and she purchased  one  mobile  set  of Samsung Galaxy S5 G900 of worth of Rs.42,000/- through invoice No.D 1183 dated 31.5.2014 from OP1 with basic warranty of one year plus extended warranty of two years. So, this warranty was available up to 31.5.2017. Op1 is the authorized service centre, but OP3 is the manufacturer of the purchased mobile set. Complainant no.1        being educated used to handle the mobile set with due care and precautions. In view of improper functioning of the mobile set, complainant no.1 approached Ops many times after its purchase. On 12.9.2016, complainant no.1 handed over the mobile set to OP2 by disclosing him as if the problem in display of the set not working properly was there and besides, multi window smart stay was not working. OP2 after necessary repair, handed over the mobile set to the complainant no.1, but even 12 days there from, the mobile set again was found not working properly because of same problem of display not working properly as well as of multi window smart stay not working. Again the mobile set was handed over to OP2 on 24.9.2016 after preparation of job card. Again after necessary repair, the mobile set was handed over to the complainant no.1.  Defects referred above claimed to be manufacturing defects. On 24.12.2016, again the same problems were faced by the complainant no.1 and she approached OP2, who refused to receive the mobile set for repair, despite the fact that mobile set was under warranty. Thereafter, complainant no.1 gave telephonic calls to Ops on 24.12.2016,  26.12.2016, 30.12.2016 and even sent emails on 1.1.2017 as well as on 3.1.2017, but despite that defects in the mobile set has not been removed to the satisfaction of the complainant. Complainant No.1 claims to have suffered mental tension and agony and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to refund the price of mobile set with interest @12% per annum. In the alternative, prayer made for directing Ops to replace the mobile phone in question with a new one of same model and of same value. Compensation for mental tension and harassment of Rs.1 lac, but litigation expenses of Rs.11,000/- more claimed.

2.                 OP1 and OP2 are ex-parte in this case, but OP3 filed written statement for contesting the claim by claiming that the complainant submitted her handset with OP2 for the first time on 12.9.2016 with the above mentioned problems, but complainant expressed inability to wait for repair and as such, handset was returned to her on that day without repair. Further, it is claimed that complainant submitted her handset with OP2 on 24.09.2016 and at that time, display of the handset was duly replaced and the reported problems rectified. Thereafter, handset was delivered back to the complainant in OK condition. After that, complainant never submitted the handset in question for any kind of repair and as such, it is claimed that no consumer dispute exist. Besides, it is claimed that the complainant has not approached this Forum with clean hands. Submission of mobile set with OP2 took place after 27 months of purchase and the reported defects were rectified without charging anything. Complaint alleged to be filed on false facts. Besides, it is claimed that permission of the Forum not obtained for instituting the present complaint, despite the fact that OP3 is having its registered office beyond the jurisdiction of this Forum. Moreover, complaint being filed for abusing the process of law, merits dismissal in view of Section 26 of the Consumer Protection Act (hereinafter in short referred to as ‘Act’). Performance of the mobile phone depends upon the physical handling of the product apart from compatibility of downloading mobile applications and games. It is claimed that mobile set in question was mishandled leading to the problem in display, but despite that same was rectified. Liability of OP3 is as per terms and conditions of the warranty and not beyond that. No report of expert or qualified person of Central approved laboratory produced for showing that alleged defects are irreparable manufacturing defects. In the absence of such report/opinion, complaint alleged to be not maintainable. Besides, it is claimed that there is no deficiency in service or breach of contract on the part of OP3. This complaint alleged to be filed for extorting money from OP3 by dragging him in unnecessary litigation. Demand of replacement of mobile handset with new one or of refund of price with interest is beyond expressed terms and conditions of the warranty. Terms and conditions of warranty provides for repair or replacement of any part thereof as per requirement. In case of damage to the product, the repair of the same can be done on chargeable basis only. If the terms of warranty does not provide for refund or replacement, then the consumer can only claim for repairing of the product as per terms and conditions of the warranty as per cited law in the written statement. There was problem in the display of the mobile handset due to mishandling. Each and every other averment of the complaint denied.

3.                 Counsel for complainants tendered in evidence affidavit Ex.CA of complainant no.1 Smt.Rekha Goel along with documents EX.C1 to Ex.11 and then closed the evidence.

4.                 On the other hand, counsel for OP3 tendered in evidence affidavit Ex.RA of Sh.Anindya Bose, Deputy General Manager of Samsung India Electronics Private Limited and then closed the evidence.

5.                 Written arguments not submitted by any of the parties. Oral arguments by counsel for complainant and counsel for OP3 addressed and those were heard. Records gone through minutely. 

6.                 Purchase of the mobile set in question by the complainant from OP1 is proved by retail invoice Ex.C1. This mobile set was purchased on 31.5.2014 by the complainant from OP1 for consideration of Rs.42,000/-. On this retail invoice Ex.C1 itself, it is mentioned that service and warranty to be provided by the service centre. So, if at all the defects in the mobile surfaced, then liability of the seller not to remain because those defects to be rectified as per terms and conditions of the warranty by the service centre for and on behalf of the manufacturer. So, for the defects in display etc., OP1 cannot be held liable in view of the express terms and conditions of providing of the warranty by the service centre. So, complaint against OP1 is not maintainable.

7.                 Ex.C2 is the warranty certificate showing as if due to extended warranty of two years, the mobile purchased by the complainant was to remain in warranty until 5.3.2017. Warranty does not apply to normal wear and tear of the parts or defects caused by the household pets, rats, cockroaches or any other animals or insects and even the warranty does not cover any kind of software support or installations as per contents of Ex.C3. In view of this, it is vehemently contended by counsel for OP3 that liability of OP3 not there for replacement of the mobile set in question with new one. That submission of counsel for OP3 has force because warranty was for repair of the mobile set or replacement of the parts only and not beyond that. So, certainly submissions advanced by counsel for complainant has no force that owing to defects in the mobile set, complainant entitled for the replacement of the mobile set with new one or for refund of price. Ex.C4 is sale invoice showing as if premium for basic warranty and extended warranty was paid by the complainant to OP2, the service centre of OP3.

8.                 Ex.C6 is the document showing as if on complaint of complainant, she was assured of looking into the matter. Ex.C8 is the email correspondence of 3.1.2017 showing as if Sushil Goyal, Proprietor of Goyal Brotherrs, Ludhiana called upon Ops to resolve the complaint regarding defective piece at earliest because business is suffering. Ex.C9 and Ex.C10 are job sheets of 24.9.2016 and 12.9.2016 prepared with respect to the mobile set in question. Status of warranty ticked for labour only on these job sheets. Problems of display and of multi window smart stay not working reflected in Ex.C9 and Ex.C10 each. As those problems were reported for the first time on 12.9.2016 through Ex.C10, despite the fact that mobile set in question was purchased on 31.5.2014 and as such, certainly submissions advanced by counsel for OP3 has force that manufacturing defect in the mobile set in question not there and that is why, it continued to work for 26 months at least after its purchase.

9.                 Though, it is contended by counsel for OP3 that defects pointed out in the job sheets Ex.C9 and Ex.C10 were rectified, but kind of repair carried out is not all mentioned in Ex.C9 and Ex.C10 because the column regarding repair description is kept blank both in Ex.C9 and Ex.C10. It is contended by counsel for OP3 that record of repairs carried out not traceable and that is why the same could not be produced. However, Ops bound to keep that record in proof of carried out repairs. As that record has not been produced and as such, certainly inference is obvious that actually repairs were not carried out regarding problems mentioned in Ex.C9 and Ex.C10 to the satisfaction of the complainant and that is why, satisfaction note only got signed but without disclosing the kind of carried repair. That is also an act of unfair trade practice. As defects in the mobile set has not been removed and as such, keeping in view the fact that defects surfaced after 26 months of purchase of the mobile set, it is fit and appropriate to direct OP2 and OP3 to repair the mobile set in question free of costs within 15 days on receipt of the mobile set from the complainant. In case, any part needs to be replaced, then OP2 and OP3 will replace the same, free of costs. As complainant owing to non removal of defects, suffered mental agony and harassment and as such, she is entitled for compensation and litigation expenses in that respect, but from OP2 and OP3 only and not from OP1.

10.               Therefore, as a sequel of the above discussion, complaint allowed in terms that OP2 and OP3 will repair the mobile set in question free of costs within 15 days on receipt of mobile set from the complainant. Complainant will hand over the mobile set to OP2 within 7 days from the date of receipt of copy of this order and thereafter, repair will be done within 15 days. In case any part need to be replaced, then replacement of the same will also be done by OP2 and OP3 free of costs. Complaint against OP1 however is dismissed. Compensation for mental harassment of Rs.3000/- and litigation expenses of Rs.2000/- more allowed in favour of complainant and against OP2 and OP3, whose liability held as joint and several. Compliance of direction qua payment of awarded compensation amount and litigation expenses be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules.

11.               File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                     (G.K.Dhir)

 Member                                                              President

Announced in Open Forum

Dated:01.08.2017

Gurpreet Sharma.