National Consumer Disputes Redressal
Samsung India Electronics Pvt. Ltd. vs Saurabh Kapooria & 2 Ors. on 13 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 649 OF 2016 (Against the Order dated 07/12/2015 in Appeal No. 65/2015 of the State Commission Rajasthan) 1. SAMSUNG INDIA ELECTRONICS PVT. LTD. REGISTERED OFFICE AT A-25, GROUND FLOOR, FRONT TOWER, MOHAN COOPERATIVE INDUSTRIAL ESTATE, NEW DELHI-110044 2. . . 3. . . ...........Petitioner(s) Versus 1. SAURABH KAPOORIA & 2 ORS. BALAJI PROPERTIES S/O SATYANARIAN KAPOORAI, R/O PAVTA JODHPUR RAJASTHAN 2. NEHAL TECHNO SERVICES AT FIRST MADHO BAGH, CHOPASANTI ROAD, JODHPUR RAJASTHAN 3. VARUN JOHRI PLAZA THROUGH PROPRIETOR, IN FRONT OF KHAS BAAG, RATANADA ROAD, JODHPUR RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Ms. Meenakshi Midha, Advocate For the Respondent : For Respondent No.1 : In person For Respondent Nos.2 & 3 : NEMO Dated : 13 May 2016 ORDER JUSTICE J.M. MALIK, PRESIDING MEMBER
1. Sh. Saurabh Kapooria, the complainant in this case, purchased a Samsung Mobile Note-2 on 15.11.2012 for a sum of Rs.35,500/- from Varun Johri Plaza, OP1, the local dealer of Samsung and Nihal Techno Services, OP2, the authorised Service Center and Samsung India Pvt., OP3, the manufacturer of mobile handsets. The said mobile phone had a warranty period of one year. The mobile booting developed problem on 08.05.2013. It was informed to OP2, which refused to repair the said set and rectify the problem, on the ground that the warranty period of the said mobile had expired. Legal Notice was sent and ultimately a complaint was filed before the District Forum with the prayer that the complainant had undergone financial, physical and mental agony due to deficiency in service on the part of OPs and claimed a sum of Rs.70,000/- against the OPs, jointly and severally.
2. The District Forum dismissed the complaint. An appeal was preferred before the State Commission. The State Commission came to the conclusion that the warranty period had not yet expired. The defence of the OPs was that as the complainant had downloaded unauthorised applications / software and, therefore, it developed booting problem which was a violation of the terms and conditions and the warranty, therefore, the handset was considered as out of warranty and the defect was not repairable, free of cost. However, this finding did not find mention in the job sheet. The OPs also produced a Service Guide, Ex.R-1 which mentioned that if 'custom' appears either in 'current binary' or in 'system status', then the handset becomes out of warranty. It was also stated by the Technician before the District Forum that 'custom' appeared in 'system status' as a result of downloading of unauthorised software.
3. The State Commission came to the conclusion that the above said fact was never informed to the complainant. Again, such terms and conditions were never explained to the complainant. Further, the OPs did not specifically furnish the list of names of softwares or applications which were prohibited or were unauthorised and were never communicated to the complainant. It was submitted that as per the Hon'ble Supreme Court's authorities, reported in 1996 (6) SCC 428 (United India Insurance Vs. MKJ Corporation) and 2000 (2) SCC 734 (M/s. Modern Insulator Ltd. Vs. Oriental Insurance Co.), the Exclusion Clause must be explained to the insured. The complainant is not bound by the terms and conditions of the Service Guide. While accepting the appeal, the State Commission ordered, as under :-
"The OP Nos. 2 & 3 shall repair free of cost, the complainant's Samsung Mobile Note-2 handset to the satisfaction of the complainant and in case, it is not possible to repair and resolve the problem, then, they shall pay Rs.35,500/-, the cost of the handset with 9% interest p.a., to the complainant, from the date of filing of the complaint. The OP Nos. 2 & 3 shall also pay to the complainant Rs.25,000/- as compensation for mental agony and cost of proceedings. The compliance of the order shall be made within one month from today".
4. We have heard the counsel for the parties. They have reiterated their stands. During the arguments, it transpired that the mobile handset which was repairable, appears it to be a case of contributory negligence. On the one hand, the company should have explained the complainant , the above said Exclusion clause, even if it is not a case of insurance. Secondly, the complainant does not appear to be an illiterate person. He was handed over the Service Guide containing the terms and conditions, Ex.R-1. He should have gone through the same. Consequently, we modify the order of the State Commission and direct the complainant to pay a sum of Rs.2,500/- for getting the said handset repaired from OPs 2 & 3. On receipt of the sum of Rs.2,500/-, the OPs 2 & 3, (as it is stated that tentative price of repairs is Rs.8,000/-) would rectify the said mobile handset. After repairing the said handset, further warranty period of three months from the date of handing over of the said rectified handset to the complainant, is extended. Accordingly, the order passed by the State Commission is set aside/replaced by this order.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER