DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHAHEED BHAGAT SINGH NAGAR Consumer Complaint No. : 97 of 19.10.2016 Date of Decision: : 29.01.2018 Rakesh Kumar aged about 38 years son of Mehar Chand, Resident of Village & P.O. Pojewal, Tehsil Balachaur, District SBS Nagar. ?Complainant Versus Arora Mobiles, Opposite Nokia Care, Rahon Road, Nawanshahr, District SBS Nagar. Samsung Service Center, Heera Jattan Mohalla, Nawanshahr through its Owner/Manager/Partner. SAMSUNG India Electronics Private Limited, (H.O.), 2nd, 3rd & 4th Floor, Tower C, Vipul Tech Square, Old Golf Road, Sector ? 43, Gurgaon, through its Managing Director. ?Opposite Parties Complaint under the Provisions of Consumer Protection Act, 1986 QUORUM: SH.A.P.S. RAJPURT, PRESIDENT S.KANWALJEET SINGH, MEMBER ARGUED BY: For complainant : Sh.P.S. Bakshi, Advocate For OP No.1 : Ex parte. For OP No.2&3 : Sh.Pushpinder Kataira, Advocate ORDER S.KANWALJEET SINGH, MEMBER Complainant filed present complaint under Section 12 of Consumer Protection Act, 1986, by alleging that he purchased a Samsung mobile Model J-7 vide bill dated 03.08.2016 for Rs.13,200/- from Op No.1 for his personal use. At that time OP No.1 assured that mobile belongs to reputed company and same will work properly without creating any trouble. Assurance was given to replace the mobile in case of defect or trouble. Since its purchase, the mobile starting creating trouble due to problem of hanging, auto switched off, low battery back up, touch screen problem & its screen used to go blank and turned white it reflects nothing and over heat problem etc. In the first week of September 2016, the complainant visited with the Op No: 2 & told to officials of OP No: 2 about its problem of mobile and the officials of OP-2 without inspecting and checking the mobile disclose that said mobile contains internal and manufacturing defects and demanded repair charges but complainant did not agree to pay the repair charges as the said mobile is under warranty for a period of one year and OP-2 flatly refused to repair the mobile set. That few day ago in the first week of month of October 2016, the said mobile again started to create the aforesaid problems and the complainant again approached to OPs and requested to solve the problem and if they unable to solve the problem then replaced the said mobile because said mobile is under warranty period. But OPs refused to admit the claim and even they denied giving in writing that why they were not admitting the claim of complainant. The said mobile set contains manufacturing defect, the Ops have sold it to the complainant unlawfully & committed deficiency in service. The complainant purchased mobile set for his personal use, but the said mobile set never worked properly from very beginning and the Ops have also miserably failed to remove the internal /manufacturing defect the said mobile set. It is very much cleared that the said mobile set is having manufacturing defect. The said mobile set is in warranty period and the defective piece consisting of manufacturing defect, has been delivered to complainant by the Ops unlawfully. The said fact is well within knowledge of the Ops. The Ops are duty bound to replace the aforesaid defect of the said mobile and to keep it in working position and remove its manufacturing defect or to replace the same. The complainant has made many requests to the Ops to repair the mobile set or to replace the same, but all in vain. The Ops are very negligent in the providing their services to the complainant. Due to aforesaid reason, the mobile of complainant remained off many days & remained cut off from his friends and job circle. So the complainant has never enjoyed his mobile set. Due to this reason, the complainant has been suffered with great mental agony & tension. He contacted and requested verbally many times to the Ops to remove the defect of the aforesaid mobile set and to keep it in proper working position or to replace it. Two days ago, the complainant visited with the Ops and requested to admit his legal and genuine claim, but the Ops flatly refused to admit the legal and genuine claim of the complainant. The Ops have failed to provide proper services to the deponent for they are duty bound. The Ops have committed deficiency in service. Lastly prayer has been made that complaint of the complainant be allowed and OP be directed to replace the aforesaid mobile set and to remove the defects of the mobile set without any cost or to refund the price money of mobile set alongwith interest and further OP be directed to pay Rs.50,000/- as damages for mental agony and tension and OP be also directed to pay Rs.15,000/- as litigation expenses. 2. Upon notice, OP No.1 has failed to appeared and ultimately proceeded against ex parte. OP No.2&3 has filed joint written version stating therein that complaint is bad for mis-joinder of parties. Answering OP has unnecessarily impleaded as party. No cause of action arisen to complainant. There is no defect in the handset of complainant. Answering OP has checked his record and record of OP No.2, till date complainant has not reported any problem in his alleged handset. Therefore, there is no deficiency in service on the part of answering OPs. Thus present complaint merits dismissal qua answering OP. Complainant has not sought permission of this Hon?ble Forum under Section 11(2) of Consumer Protection Act 1986 before instituting the present complaint against answering OP. The present complaint is liable to be dismissed under Section 26 of Consumer Protection Act as the same is gross abuse of process of law. As per facts of the present complaint, complainant has never approached to OP-2 with any kind of problem in his alleged handset. Complainant has concealed the material and necessary information that the obligation of the answering OP under warranty is to set right the mobile hand set by repairing or replacing the defective parts only. No such assurance to replace the handset is given by the answering OP under the terms of warranty and complainant cannot claim more than he has agreed. Further, it is submitted that complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. The complainant claims that the said mobile to be suffering from defects, therefore, it is the legal duty, under the discharge of burden, upon complainant to establish the same by technical expert report but no such report has been adduced by the complainant. It is also submitted that there is no deficiency in service or breach of contract on the part of answering OPs. Answering OPs have never denied after sales services to the complainant and they are still ready to provide service to the complainant if required, subject to warranty terms and conditions. On merits, each and every averments of the complaint are denied and prayed for dismissal of the complaint. 4. On being called to do so, the complainant has tendered in evidence affidavit of complainant Ex.CW1/A alongwith documents Ex.C-1 and close the evidence. Learned counsel for OPs No.2&3 has tendered affidavit of Anindya Bose Ex.OP2/A, photocopy of customer details cum warranty card Ex.OP-1 and close the evidence. 5. We have heard the learned counsel for complainant and OP No.2&3 and have also gone through the record carefully. 6. During arguments, the contention of the complainant is that complainant has purchased a Samsung Mobile Model J-7 vide bill dated 03.08.2016 for an amount of Rs.13,200/- from the OP No.1 for his personal & daily use. It was assured to the complainant by the OP-1 that the said mobile belongs to a good reputed company and it will work properly and further will not create any trouble. In case any trouble arises, the OPs will remove the defects or otherwise, they will replace the same. The complainant started to use the said mobile set with very careful manner as per his requirement of his daily use. From the very beginning, the said mobile started to create trouble in its functioning/working and started to hang in between its use, further its started to auto switch off, battery use to discharge much before the given standby and usage time by the company, moreover there was problem in the touch of the screen & the screen used to go blank and turn white and reflected nothing sometimes, and further used to get over, heated, etc in the first week of September 2016. The complainant visited the OP-2 regarding the said problem of the mobile and the officials of OP-2 without inspecting and checking the mobile that the aforesaid mobile contains internal and manufacturing defects, started demanding repair charges but when the complainant did not agree to pay the repair charges as the said mobile is under warranty for the period of one year, then the OP-2 flatly refused to repair the mobile set. 7. The OPs are duty bound to protect the right of his customer and to replace the defects in the electronic appliance purchased and keep the mobile set in proper working order/position. But the OPs are indulged in unfair trade practice and are harassing the complainant without any reason and miserably failed to provide proper services to the complainant. Hence the OPs have committed deficiency in consumer services. Due to unlawful act and deficiency in services of the OPs, the complainant suffered mental tension and financial loss. They have failed to perform their duties towards their consumer i.e. the complainant. Although the complainant has suffered great mental tension and financial loss. As such complainant is entitled for relief as prayed for. 8. On the other hand counsel for OP No.2&3 contended during the arguments that complaint is bad for misjoinder of parties. Answering OP has unnecessarily impleaded as party. No cause of action arisen to complainant. There is no defect in the handset of complainant. Answering OP has checked his record and record of OP No.2, till date complainant has not reported any problem in his alleged handset. Therefore, there is no deficiency in service on the part of answering OPs. Complainant has not sought permission of this Hon?ble Forum under Section 11(2) of Consumer Protection Act 1986 before instituting the present complaint against answering OP. The present complaint is liable to be dismissed under Section 26 of Consumer Protection Act as the same is gross abuse of process of law. As per facts of the present complaint, complainant has never approached to OP-2 with any kind of problem in his alleged handset. Complainant has concealed the material and necessary information that the obligation of the answering OP under warranty is to set right the mobile hand set by repairing or replacing the defective parts only. No such assurance to replace the handset is given by the answering OP under the terms of warranty and complainant cannot claim more than he has agreed. Further, it is submitted that complainant has not set out any legitimate ground entitling him for replacement of mobile phone with damages and litigation cost. The complainant claims that the said mobile set is defective one. Therefore, it is the legal duty, under the discharge of burden, upon complainant to establish the same by technical expert report but no such report has been adduced by the complainant. It is also submitted that there is no deficiency in service or breach of contract on the part of answering OPs. Answering OPs have never denied after sales services to the complainant and they are still ready to provide service to the complainant if required, subject to warranty terms and conditions. 9. Ex.OP-1 ? warranty card clear cut shows that the mobile set in question is having one year warranty. Moreover, clause ? 8 of the warranty provides that company?s obligation under this warranty shall be limited to repair or providing replacement of part/s only. Complainant filed an application for appointment of independent expert for examining the mobile set for expert opinion regarding present condition of the mobile in question and notice of the application given to the counsel for Op No.2&3. Counsel for OP No.2&3 has suffered statement that he has no objection, if the application of the complainant is allowed. Expert report regarding present condition of mobile in question is tagged with the file on 22.01.2018. As per said report, mobile model SM-J700F, display break, parts name LCD, part No. GH97-17670A and part name Bracket Shield No.GH98-37385A required to be replaced. 10. Resultantly, this complaint is partly allowed with directions to OP No.2&3 to replace the defective part of the mobile in question free of cost and make the said mobile set defect free to the satisfaction of complainant. 11. Entire compliance be made by the OP No.2&3 within a period of 30 days from the date of receipt of copy of this order. 12. Copies of the order be sent to the parties, as permissible, under the rules. Dated: 29.01.2018 (Kanwaljeet Singh) (A.P.S. Rajput) Member President