DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
CC.No.791 of 24-12-2014
Decided on 09-09-2015
Sanjeev Goyal @ Sanjeev Kumar aged about 40 years S/o Tara Chand Goyal R/o Street No.8, Opposite DAV College, Bibi Wala Road, Bathinda.
........Complainant
Versus
1.Shiv Bhole Telecom, Street No.6, Opposite Imperial Motors, Nai Basti, Bathinda, through its Proprietor/Partner.
2.Shri Ram Tele Services, Authorized Service Centre, SCF-5, Street No.6, Nai Basti, Bathinda, through its Manager/Partner/Proprietor.
3.Samsung India Electronics Pvt. Ltd., 7th & 8th Floor, IFCI tower 61, Nehru Place, New Delhi-110019, through its Managing Director/Authorized Signatory/Manager.
.......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.Bharat Bhushan, counsel for the complainant.
For Opposite parties: Opposite party No.1 ex-parte.
Sh.Kuljit Pal Sharma, counsel for opposite party Nos.2
and 3.
ORDER
M.P Singh Pahwa, President:-
1. The complainant Sanjeev Goyal @ Sanjeev Kumar (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Shiv Bhole Telecom and Others (here-in-after referred to as opposite parties).
2. Briefly stated, the case of the complainant is that he has purchased one Samsung G7102 mobile handset bearing IMEI No.352116068613247 and 352117068613245 for Rs.20,500/- vide invoice/bill No.6822 dated 16.6.2014 from opposite party No.1, manufactured by opposite party No.3 with one year warranty/guarantee for his personal use. At the time of selling of mobile handset, opposite party No.1 assured the complainant that in case, there would be any defect in it, the same would be rectified free of cost and in case, any defect that cannot be rectified, it would be replaced with new one immediately.
3. It is alleged that after about one month, the abovesaid mobile handset started creating problems. The complainant approached opposite party No.1, it asked him to approach opposite party No.2, the authorized service centre of opposite party No.3. The complainant approached opposite party No.2, its officials after conducting minor repair on the mobile handset, handed over it to the complainant with the assurance that the mobile handset in question has been repaired and there would be no problem in it in future, but at that time opposite party No.2 did not issue him any job sheet.
4. It is further alleged that after sometime the complainant found the same problems in addition to earlier problems and there was new problem regarding the jack of the mobile handset as it did not charge the mobile handset properly and sometimes unwanted applications automatically opened in it. On 12.12.2014, the complainant approached opposite party No.2, its officials after checking the mobile handset issued a job sheet dated 12.12.2014 by mentioning in it 'Out of Warranty' and after conducting some repairs, conveyed him that if he wants to get his mobile handset repaired properly, he will have to pay Rs.750/- as it is out of warranty. The complainant requested opposite party No.2 to repair the mobile handset free of cost as it is within the guarantee/warranty period, but to no effect. It is also alleged that the complainant again approached opposite party No.1, the dealer of mobile handset and requested it to replace the mobile handset in question with new one, but opposite party No.1 did not pay any heed to his request and conveyed him that it cannot do anything in this matter.
On this backdrop of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties. The complainant has claimed compensation to the tune of Rs.50,000/- and Rs.11,000/- as cost of litigation expenses and prayed for directions to opposite parties either to replace the mobile handset with new one or to refund its price i.e. Rs.20,500/- Hence, this complaint.
5. Upon notice, none has appeared on behalf of opposite party No.1. Hence, ex-parte proceedings were taken against opposite party No.1.
6. Opposite party Nos.2 and 3 appeared through counsel and contested the complaint by filing their joint written version.
7. In written version, opposite party Nos.2 and 3 raised the preliminary objections that the complainant has not sought permission of this Forum U/s 11(2) (b) of 'Act' before instituting of this complaint against them. This 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. It is pleaded that the mobile handset in question has been badly mishandled. The data cable was welded/melted with mobile handset, when the mobile handset was deposited with opposite party No.2 for the first time on 12.12.2014. It is also pleaded that opposite party Nos.2 and 3 have never denied after sale services and are still ready to provide service to the complainant, but on chargeable basis as the mobile handset in question is not covered under warranty being physically damaged. Due to welding of data cable at charging point of mobile handset, which was a physical damage, the mobile handset was not covered under warranty and estimate of repair was given to the complainant, but he refused to get the same repaired on chargeable basis. It is also pleaded that the complainant has committed breach of warranty conditions. The complainant has not set out any legitimate ground entitling him for replacement of mobile handset with damages and litigation cost. The complainant has misused the process of law.
8. On merits also, opposite party Nos.2 and 3 controverted all the material averments and reiterated their stand as taken in preliminary objections and detailed above.
9. Parties were afforded opportunities to produce evidence.
10. In support of his version, the complainant tendered into evidence his own affidavits dated 24.12.2014 and 25.3.2015, (Ex.C1 and Ex.C4); copy of invoice, (Ex.C2) and copy of job sheet, (Ex.C3) and submitted written arguments.
11. Opposite party Nos.2 and 3 tendered into evidence affidavit of Shriniwas Joshi dated 3.3.2015, (Ex.OP2/1) and copy of warranty card, (Ex.OP2/2) and closed the evidence.
12. We have heard learned counsel for parties and have gone through the written arguments.
13. Learned counsel for complainant has reiterated his version as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the material facts are not in dispute. It is not disputed that the mobile handset was purchased from O.P.No1, InvoiceEx.C2 proves this fact. Ex.C2 also proves that there was warranty by the company. The complainant has produced job card dated 12.12.2014, (Ex.C3). It is mentioned in the job sheet as 'Out of Warranty', but the mobile handset was within the warranty period. Therefore, opposite party Nos.2 and 3 have malafide intention from the very beginning. Ex.C3 also proves that the total estimate cost of repair was mentioned as Rs.750/-, whereas it was to be free of cost. The stand of opposite party Nos.2 and 3 is that the damages to the mobile handset were due to mishandling, but there is no evidence to support this averment. Opposite parties cannot escape from their liability only by alleging that the damages are due to mishandling. When the damage is admitted by opposite party Nos.2 and 3, there was no requirement of any expert opinion.
To support these submissions learned counsel for complainant has cited 2013(4) CLT 96 in case titled as M/s SAS Motors Ltd. Vs. Anant Haridas Choudhari.
14. On the other hand, learned counsel for opposite party Nos.2 and 3 has reiterated his version as taken in the written version. It is further submitted by learned counsel for opposite party Nos.2 and 3 that the documents relied upon by the complainant himself, supports the version of opposite party Nos.2 and 3. The complainant has admittedly purchased mobile handset on 16.6.2014 and job sheet is of 12.12.2014, as such he has used his mobile handset for about 6 months without any trouble. No other job card has been brought on record. The physical condition of the mobile handset was recorded in the job card, which shows 'Burn Marks on Battery Cover Near Charging Jack', This burn marks cannot be due to any manufacturing defect, but certainly due to mishandling. Therefore, these damages are not covered under warranty. As such, the complaint is liable to be dismissed.
15. We have given careful consideration to these submissions.
16. Admitted facts are that the complainant purchased one mobile handset on 16.6.2014 from opposite party No.1. It is not disputed that there was warranty of one year and as per opposite parties, warranty of 6 months was for battery. The complainant has placed on record job card dated 12.12.2014, (Ex.C3). Therefore, the mobile handset was within the warranty including its battery. The defect reported in the job card is burn marks on battery cover near charging jack. As per opposite party Nos.2 and 3, this fault is due to mishandling, but how burn marks can appear by mishandling, is not explained. There is no other evidence to prove that this fault is due to mishandling. In these circumstances, the stand of opposite party Nos.2 and 3 to claim charges for repair is not justified and complainant is entitled to get repair his mobile handset free of cost being warranty.
17. For the reasons recorded above, the complaint is partly accepted with Rs.1000/- as cost and compensation against opposite party Nos.2 and 3 and dismissed qua opposite party No.1. Opposite party No. 3 is directed to get repair the mobile handset in question. Opposite party No.2 is stated to be authorized service centre. There is no independent contract with opposite party No.2. Opposite party No.2 has to act as an agent of opposite party No.3, who is manufacturer of mobile handset. It is responsibility of the manufacturer to get the mobile handset repaired. Therefore, no separate order is required against opposite party No.2.
18. The compliance of this order be made within 6 weeks from the date of receipt of copy of this order.
19. This case could not be decided within the statutory period due to heavy pendency.
20. A 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:-
09-09-2015
(M.P Singh Pahwa)
President
(Sukhwinder Kaur)
Member
(Jarnail Singh)
Member
