State Consumer Disputes Redressal Commission
Sh. Ajay. vs Himalaya Photo Store. & Ors. on 22 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 147/2018
Date of Presentation: 11.06.2018
Order Reserved on : 13.12.2018
Date of Order : 22.04.2019
......
Ajay Son of Shri Pradeep Kumar Resident of Village and Post
Office Kothunwa Tehsil Sandhol District Mandi H.P.
...... Appellant/Complainant
Versus
1. Himalaya Photo Store SCO-1032 33 Sector 22-B
Chandigarh (Dealer of Samsung Mobile).
......Respondent/Opposite party No.1
2. Awasthi Enterprises SCO-217 Indira Market Mandi Town
Tehsil Sadar District Mandi H.P. (Authorized to
Collection and Repair Samsung Mobile of Samsung India
Electronics Pvt. Ltd.)
......Respondent/Opposite party No.2
3. Samsung India Electronics Pvt. Ltd. Having registered
Office at A 25 Ground Floor Front Tower Mohan
Cooperative Industrial Estate New Delhi 110004.
......Respondent/Opposite party No.3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Prittam Singh Advocate vice
Mr. Jai Dev Thakur Advocate.
For Respondents No.1&2 : Ex-parte.
For Respondent No.3 : None despite opportunities.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018)
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 03.05.2018 passed by Learned District Forum in consumer complaint No.132/2017 titled Ajay Versus Himalaya Photo Store & Ors.
Brief facts of Matter:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant purchased Samsung Mobile J200 for consideration amount of Rs.8050/- (Eight thousand fifty) vide bill No. 7257 on dated 12.10.2016 from opposite party No.1.
It is pleaded that on dated 10.02.2017 mobile automatically started switching off. It is further pleaded that on dated 14.02.2017 complainant handed over the phone in question for repair through his brother in law namely Prittam Singh to opposite party No.2 being authorized collection point of opposite party No.3. It is further pleaded that mobile phone was checked through engineer and job sheet No.1423 dated 14.02.2017 was prepared and complainant was informed that mobile in question would be sent to Samsung Care Centre as the mobile phone was within warranty period. It is further pleaded that again on dated 01.03.2017 complainant went to 2 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) opposite party No.2 alongwith his brother in law and Advocate Vipin Awasthi to collect the mobile phone but display of mobile phone did not work. It is further pleaded that mobile phone in question was having manufacture problem. It is further pleaded that again opposite party No.2 told the complainant that mobile phone would be again sent to Samsung Care Centre and it would take about 15 days for repair. It is further pleaded that on dated 20.03.2017 complainant again visited the shop of opposite party No.2 for collection of mobile phone but opposite party No.2 told that mobile phone was sent to Samsung Care Centre. It is further pleaded that opposite party No.1 is dealer of Samsung Mobiles, opposite party No.2 is authorized collection point of Samsung India at Mandi (H.P.) and opposite party No.3 is manufacturer of mobile phone in question. It is further pleaded that cause of action accrued to the complainant at Mandi (H.P.) when authorized collection authority took possession of mobile in question on behalf of manufacturing company and did not repair the mobile phone. Complainant sought relief for replacement of mobile phone with new mobile phone and in alternative complainant sought relief of payment of Rs.8050/-(Eight thousand fifty). In addition complainant sought relief of payment of Rs.15000/- (Fifteen thousand) as compensation for mental agony and harassment. In addition complainant sought relief of payment 3 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) of Rs.5000/- (Five thousand) as costs of litigation. Prayer for acceptance of consumer complaint sought.
3. Opposite parties No.1 and 2 did not appear before learned District Forum despite service and learned District Forum proceeded ex-parte against opposite parties No.1 & 2.
4. Per contra version filed on behalf of opposite party No.3 before Learned District Forum pleaded therein that Learned District Forum has no territorial jurisdiction to entertain and dispose of consumer complaint. It is pleaded that there was no manufacturing defect in the product in question. It is further pleaded that vide complaint No.4231034190 dated 17.02.2017 Engineer of opposite party No.2 checked the mobile phone in question in the presence of complainant and found that display of mobile phone was damaged due to negligence and mishandling on the part of complainant. It is further pleaded that defect did not fall within the warranty condition. It is further pleaded that repair estimate was submitted to the complainant but complainant demanded free of charges repair of mobile in question. It is further pleaded that opposite party No.3 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
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Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018)
6. Learned District Forum dismissed the consumer complaint on the ground that opposite party No.2 who is resident of Mandi town is collection point of opposite party No.3 and is not service centre of opposite party No.3 situated within the jurisdiction of Forum.
7. Feeling aggrieved against order passed by learned District Forum complainant filed present appeal before State Commission.
8. We have heard learned Advocate for appellant and we have also perused entire record carefully. None appeared on behalf of co-respondents No.1&2 before State Commission and co-respondents No.1 & 2 were proceeded ex-parte by State Commission. Learned Advocate Shri Sanjay Dalmia appeared on behalf of co-respondent No.3 before State Commission. State Commission listed the matter for arguments on behalf of co-respondent No.3 on 10.12.2018, 11.12.2018, 12.12.2018 and 13.12.2018 but none appeared on behalf of co-respondent No.3 for arguments. State Commission decided to dispose of present appeal on merits.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether part of cause of 5 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) action accrued to the complainant to file consumer complaint within the territorial jurisdiction of Consumer Forum Mandi H.P. when work order No.1423 dated 14.02.2017 was issued by opposite party No.2 on behalf of manufacturing company i.e. Samsung India at place SCO-217 Indira Market Mandi Town Mandi H.P.?
2. Final order.
Findings upon point No.1 with reasons:
10. Complainant Ajay filed affidavit in evidence. There is recital in affidavit that deponent purchased Samsung Mobile J200 for consideration amount of Rs.8050/- (Eight thousand fifty) vide bill No. 7257 on dated 12.10.2016 from opposite party No.1. There is further recital in affidavit that on dated 10.02.2017 display of mobile phone automatically started switching off. There is further recital in affidavit that display of mobile phone in question stopped working and thereafter on dated 14.02.2017 deponent handed over the mobile phone in question for repair through his brother in law namely Prittam Singh to opposite party No.2. There is further recital in affidavit that opposite party No.2 is collection point of opposite party No.3 and took the mobile phone in question and checked the mobile phone through engineer and found that mobile phone in question sustained display problem.
There is further recital in affidavit that job sheet No.1423 6 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) dated 14.02.2017 by opposite party No.2 at Mandi (H.P.) was prepared and deponent was informed that mobile in question would be sent to Samsung Care Centre. There is further recital in affidavit that defect was not removed. There is further recital in affidavit that opposite parties have committed deficiency in service and caused mental harassment to the complainant. There is further recital in affidavit that opposite party No.1 is dealer of Samsung Mobiles, opposite party No.2 is authorized collection point of Samsung India at Mandi (H.P.) and opposite party No.3 is manufacturer of mobile phone in question. There is further recital in affidavit that cause of action accrued to the deponent at Mandi (H.P.) when work order No.1423 dated 14.02.2017 was received by opposite party No.2 at Mandi H.P. on behalf of manufacturing company and when opposite parties did not repair the mobile phone in question.
11. Complainant also filed affidavit of Prittam Singh in evidence. There is recital in the affidavit that deponent is brother in law of complainant. There is further recital in affidavit that on dated 14.02.2017 complainant handed over the phone in question for repair to opposite party No.2 through deponent when mobile phone in question started switching on and off problem. There is further recital in affidavit that on dated 01.03.2017 deponent went to the shop 7 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) of opposite party No.2 alongwith complainant and Advocate Vipin Awasthi to collect the mobile phone in question but mobile phone in question did not work properly and problem sustained in the mobile phone was not rectified. There is further recital in affidavit that opposite party No.2 told that mobile phone would be again sent to Samsung Care Centre and it would take about 15 days for repairing the mobile phone in question as the mobile phone in question sustained manufacturing defect.
12. Complainant also filed affidavit of Vipin Awasthi Advocate in evidence. There is recital in the affidavit that deponent is practicing Advocate at District Courts Mandi (H.P.). There is further recital in affidavit that on dated 01.03.2017 deponent went to the shop of opposite party No.2 alongwith complainant and Prittam Singh to collect the mobile phone in question. There is further recital in affidavit that opposite party No.2 checked the mobile phone in question but mobile phone in question was not working properly. There is further recital in affidavit that opposite party No.2 told complainant that mobile phone would be again sent to Samsung Care Centre and it would take about 15 days for repairing the mobile phone in question as the mobile phone in question sustained manufacturing defect. 8
Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) State Commission has carefully perused all the annexures filed by complainant.
13. Opposite party filed affidavit of Anindya Bose in evidence. There is recital in the affidavit that there was no manufacturing defect in the product in question. There is further recital in affidavit that complainant approached on dated 17.02.2017 vide complaint No.4231034190. There is further recital in affidavit that Engineer checked the mobile phone in question and found that display of mobile phone was damaged due to negligence and mishandling on the part of complainant. There is further recital in affidavit that estimate cost of repair was submitted to the complainant but complainant demanded free of charges repair of mobile in question. There is further recital in affidavit that defect occurred in the mobile phone in question does not fall within the terms and conditions of warranty card. There is further recital in affidavit that opposite party No.3 did not commit any deficiency in service.
14. Submission of learned Advocate appearing on behalf of complainant that opposite parties be directed to replace the mobile phone handset in question with a new mobile phone with fresh warranty or in alternative opposite parties be directed to pay consideration amount of Rs.8050/- (Eight thousand fifty) to the complainant is decided 9 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) accordingly. It is proved on record that complainant purchased mobile phone in question from opposite party No.1 vide bill No.7257 on dated 12.10.2016 in consideration amount of Rs.8050/- (Eight thousand fifty) at Chandigarh. There is no evidence on record in order to prove that guarantee card was issued by the opposite parties. It is well settled law that guarantee card and warranty card are entirely two different concepts under law. As per law in guarantee card replacement of product is permissible and in warranty card only defective parts of the product in question are repaired during warranty period free of charges. In the present matter only warranty card was issued by the manufacturing company and guarantee card was not issued by the manufacturing company. In view of above stated facts it is held that complainant is not legally entitled for replacement of mobile phone in question with a new mobile phone with fresh warranty. It is also held that complainant is not legally entitled for sum of Rs.8050/- (Eight thousand fifty) in alternative because there is condition in bill No.7257 dated 12.10.2016 that goods once sold would not be returned/exchanged.
15. Submission of learned Advocate appearing on behalf of complainant that there was manufacturing defect in the product in question and on this ground appeal be allowed 10 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) is decided accordingly. It is well settled law that manufacturing defect in the product could be proved only by way of affidavit of expert. Complainant did not file any affidavit of expert in order to prove that there was manufacturing defect in the product in question. Sole testimony of complainant that there was manufacturing defect in the mobile phone in question is not sufficient without corroborative evidence because complainant is not expert. Plea of complainant that there was manufacturing defect in the product in question is defeated on the concept of ipse-dixit (An assertion made without proof). See 2018 (2) CPR 673 NC titled M/s. Pritul Machinery & Anr. Versus Anand Bahuguna. See 2018 (2) CLT 230 NC titled Pawan Kumar Versus M/s. Nissan Motors India Pvt. Ltd. & Ors. See 2017 (3) CPR 224 NC titled Baljit Kaur Versus Divine Motors & Anr. See 2017 (3) CPR 35 NC titled Mahender Kumar Versus Hero Honda Motors Ltd. & Anr. See 2017 (1) CPR 643 (NC) titled Bhagwan Singh Shekhawat Versus M/s. R.K. Photostat & Communication & Ors.
16. Submission of learned Advocate appearing on behalf of complainant that opposite parties did not remove the defect in the mobile phone in question during the warranty period and complainant is legally entitled for compensation on account of mental agony and harassment is 11 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) decided accordingly. It is proved on record that mobile phone in question was not repaired by the opposite parties when defect occurred in the mobile phone during warranty period. State Commission is of the opinion that complainant is legally entitled for reasonable compensation for mental agony and harassment.
17. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for ligation costs to the tune of Rs.5000/- (Five thousand) is decided accordingly. It is proved on record that complainant engaged Advocate and has also paid Advocate fees and also paid litigation costs. State Commission is of the opinion that complainant is legally entitled for reasonable litigation costs.
18. Plea of opposite party No.3 in version that District Forum has no territorial jurisdiction to entertain the consumer complaint is decided accordingly. It is proved on record that opposite party No.2 is resident of District Mandi H.P. It is also proved on record that opposite party No.2 is authorized collection point of manufacturing company i.e. Opposite party No.3. As per law authorized collection point means a person who has authority to regain control of product in question on behalf of manufacturing company. It is proved on record that authorized collection authority i.e. Opposite party No.2 took the possession of mobile phone in 12 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) question from complainant at Mandi H.P. and thereafter issued work order No.1423 dated 14.02.2017 on behalf of Samsung India relating to product in question in favour of complainant from SCO-217 Indira Market Mandi town Mandi H.P. within the territorial jurisdiction of District Forum Mandi. It is also proved on record that thereafter opposite party No.2 sent the mobile phone in question to service centre of manufacturing company from Mandi town District Mandi H.P. It is also proved on record that thereafter manufacturing company has accepted the receipt of product in question. In view of above stated facts it is held that part of cause of action accrued to the complainant within the territorial jurisdiction of District Forum Mandi (H.P.).
19. It is well settled law that cause of action consist of bundle of facts which gives right to claim relief against opposite parties. It is also well settled law that consumer complaint could be filed where part of cause of action accrued to the complainant as per Section 11 of Consumer Protection Act 1986 despite fact that principal office is situated outside the territorial jurisdiction of District Forum. See 1997 (1) CPC 639 SCDRC Punjab titled Punjab State Electricity Board & Ors. Versus Akhil Bhartiya Grahak Panchayat & Ors. See 1998 (1) CPC 84 SCDRC Punjab titled Balbir Singh Sangha Versus Refco and Wessamat Appliances (Private) Limited. See 13 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) 1995 (1) CPC 211 SCDRC Madras titled M/s. Viswapriya Financial Services Versus Andhra Bank & Anr. See 1997 (1) CPC 467 NC Rampion Pharmaceuticals Versus Dr. Preetam Shah. See 1996 (2) CPC 518 SCDRC Punjab Shanti Devi Versus M/s Wheels World.
20. Even address of opposite party No.2 who received the mobile phone in question from complainant on behalf of manufacturing company i.e. Samsung India has been mentioned as SCO-217 Indira Market Mandi Town Mandi H.P. Even mobile phone in question was sent for repair purpose to the service center of manufacturing company from District Mandi H.P. which falls within the territorial jurisdiction of Ld. District Forum Mandi.
21. Plea of opposite party No.3 in version that fault occurred in the mobile phone in question due to negligence and mishandling on the part of complainant is decided accordingly. Opposite party No.3 did not file affidavit of Service Engineer who has personally inspected product in question in order to prove that defect occurred in the mobile phone due to negligence and mishandling on the part of complainant. No reason assigned by the opposite party No.3 as to why opposite party No.3 did not file affidavit of service engineer in the present matter. Hence adverse inference is drawn against the opposite party No.3 for non-filing personal 14 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) affidavit of service engineer who has personally checked the mobile phone in question.
22. Affidavit filed by Anindya Bose is not helpful to the manufacturing company because Anindya Bose has not personally inspected the mobile phone in question and there is no recital in the affidavit that Anindya Bose is service engineer of manufacturing company. It is held that Anindya Bose has filed affidavit on the basis of derived knowledge only. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to rely upon the affidavit filed on the basis of derived knowledge.
23. On the contrary complainant has filed affidavits of eye-witnesses namely Prittam Singh and Vipin Awasthi. Prittam Singh and Vipin Awasthi have specifically mentioned in their affidavits that mobile phone in question was received by opposite party No.2 from complainant at Mandi H.P. on behalf of manufacturing company. Prittam Singh and Vipin Awasthi are eye-witness of incident. Affidavits filed by Prittam Singh and Vipin Awasthi are trustworthy, reliable and inspire confidence of State Commission. Plea of opposite parties that defect occurred in the mobile phone due to negligence and mishandling on the part of complainant is defeated on the concept of ipse-dixit (An assertion made without proof). In view of above stated facts State Commission is of the opinion 15 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) that order of learned District Forum warrants interference by State Commission. Point No.1 is decided accordingly. Point No.2: Final Order
24. In view of findings upon point No.1 above appeal is partly allowed. Order of learned District Forum dated 03.05.2018 announced in Consumer Complaint No.132 of 2017 is set aside. It is ordered that opposite parties shall replace the defective parts of mobile phone in question free of charges within one month after receipt of certified copy of order of State Commission jointly and severally. It is further ordered that complainant shall handover the mobile phone in question to the opposite parties for repair purpose expeditiously.
25. It is further ordered that opposite parties shall pay compensation to the tune of Rs.5000/- (Five thousand) to the complainant for mental agony and harassment jointly and severally. It is further ordered that opposite parties shall pay litigation costs to the tune of Rs.3000/- (Three thousand) to the complainant jointly and severally.
26. Bill No.7257 dated 12.10.2016 Annexure C-1 and work order No.1423 dated 14.02.2017 Annexure C-2 issued by opposite party No.2 on behalf of manufacturing company Samsung India from place situated at SCO-217 Indira Market 16 Ajay Versus Himalaya Photo Store & Ors. (F.A. No.147/2018) Mandi Town Mandi H.P. shall form part and parcel of order. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned District Forum for information forthwith and file of State Commission be consigned to record room after due completion forthwith. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 22.04.2019.
*GUPTA* 17