Orissa

Sambalpur

CC/65/2017

Shani Sharma - Complainant(s)

Versus

1- M/S Samsung India Electronic Pvt. Ltd. - Opp.Party(s)

Sri. B.K.Shroff & A.K Patra

18 Jul 2022

ORDER

PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

Consumer Case No-65/2017

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Shani Sharma,

S/O- Jay Chand Sharma,

R/O-Ward No. 29, Madnawati Public School, Ainthapali

PO-Budharaja,

Dist- Sambalpur-768004, Odisha.                                          …..Complainant

 

Vrs.

1. M/S Samsung India Electronics Pvt. Ltd.

Tower C, Vipul Tech Square Golf Cource Road,

Sector-43, Gurgaon, India-122002.

2. M/S DIBYANSHI,

Authorised Samsung Service Centre,

In front of Budharaja Petrol Pump,

Budharaja, Sambalpur-768004..….Opp. Parties

Counsels:-

1. For the Complainant      :-Sri. B.K.Shroff & A.K.Patro, Advocate & Associates.
2. For the O.P.1                   :-Sri. P.K.Patel & R.P. Nanda, Advocate & associates.
3. For the O.P. 2                  :-Sri. S.K.Mohanty, Advocate & associates. 

 

DATE OF HEARING : 04.07.2022, DATE OF JUDGEMENT :18.07.2022

Presented by Sri. Sadananda Tripathy, MEMBER

1. The case of the Complainant is that the Complainant has purchased a Samsung A 710 (Model) cell phone set from one retailer namely ‘Audio & Video Clinic” vide invoice No. 54659 on dtd. 13.12 2016 at the price of Rs. 26,000/- bearing Serial No. RZ8HAOE4DXZ, IMEI No. 352811081183802 with one year manufacturing warranty. On 14.07.2016 the touch screen of the newly purchased cell phone did not work properly, there was also overheating. As the cell phone is within the warranty period, the Complainant visited the Authorised Service Centre of the Company i.e O.P No. 2 and on 04.08.2017 the repaired mobile set was delivered to the Complainant vide Bill No. 14832 dtd. 14.07.2017.Subsequent in the month of August of 2017 it shown the same problem and again the Complainant went the service centre for repairing after some days the repaired set was also delivered vide Bill No. 4242092615 dtd. 03.08.2017. Again in the same month of August 2017, the same problem was arosed for which the Complainant had been to service centre to rectify the same problem. But this time the O.P No. 2 refused to provide warranty service, the Complainant has shown the purchased receipt to conform that the cell phone is still cover under one year warranty, but they did not listen and misbehaved the Complainant. Due to the manufacturing defects the problem could not be rectify from it’s root so, the said set again and again showing the problems.  Found no remedy the Complainant has bound to deposit the same before the O.P No. 2 bearing invoice slip No. 4242650560 dtd. 09.08.2017. The Complainant is visiting the service centre i.e O.P No. 2 so many times for the same manufacturing defects but the cell phone set could not be repaired till date.
2. The case of the O.P No. 1 is that The O.P No. 1 is a company duly incorporated under the provisions of the Companies Act, 1956 and is a reputed manufacturing of various types of Electronics and household items. In his version, the O.P No. 1 is well supported the O.P No. 2 as having excellent setup for sales servicing of its products, which are manned by qualified and experienced personnel. Every procedure for service/repairs is standardized and procedures are laid down for the service centres for carrying out necessary services/repairs/replacement as may be required.  There is breach of warranty terms and conditions as the handset has been found “Liquid Damage” due to which internal parts of the handset were damaged and handset was not working. Liquid damage is warranty void condition, due to breach of warranty the repair is to be done on chargeable basis and complainant refused to pay for repair charges. The clause 5 of the job sheet placed on record by the Complainant reads as follows “The product has been accepted for service subject to internal verification. If product is found to be tampered, misused, components removed, cracked or liquid logged the same will not be considered under warranty. In such case customer will have to pay for the repair or the produce will be returned without repairs”. In his version, the O.P No. 1 also mentioned that the present complaint is bad for non-joinder of necessary party. The Complainant has not impleaded the retailer from whom the product in question has been purchased, who is also one of the necessary party to the present complaint. It is only the dealer who may authenticate the invoice of the mobile in question. The Complainant has sought replacement of mobile or refund of price, which is not permissible under the law and also under the terms of warranty. The replacement or refund is only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. That for any defect developed after the lapse of warranty or defect due to liquid ingress/logging the answering O.P is not responsible for the same. In the present case the handset was found to be “Liquid Damaged”. Hence the handset was not covered under warranty and repair was to be done on chargeable basis only but Complainant refused to get his handset repaired on chargeable basis. There was no inherent manufacturing defect in the handset.

The O.P No. 1 has submitted some judgement. In the judgement of the Hon’ble National Commission in the case of K.L Arora V/s. Groovy communications (2002)3 CPF 92 (NC) for the necessity of expert evidence to prove the submissions of manufacturing defects in the mobile handset made in the complaint. The O.P craves leave to file an affidavit of the service engineer, being the expert to prove that the Complainant allegations are baseless and unjustified. Further on the judgement of Hon’ble National Commission in “Mahindra & Mahindra Ltd. V/s. B.G Thakudesai & Anr. Reported at 1986-95 consumers 362 (NS) and M/S Tata Engineering & Locomotive Co.Ltd. & Anr. Vs. M. Moosa reported at 1986-95 consumer 1367 (NS)”. And on the judgement of Hon’ble National Commission in case of Dr. Hema Vasantilal Dakoria VS. Bajaj Auto Ltd. & Ors. Reported at II (2005) CPJ 102 (NC). Which has clearly laid down that: “As per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered”.  Further it has been held by the Hon’ble Supreme Court in Ghaziabad Development Authority V/S. Union of India, (2000) 6SCC 113, that no damages are payable for mental agony in cases of breach of ordinary commercial contracts. Further, in Bihar State Housing Board V/s. Prio Ranjan Rov, (1997) 6 SCC 487., it has been held that where damages are awarded there must be assessment thereof. It was also held that the Order awarding damages must contain an indication of the basis upon which the amount awarded is arrived at. Further in Bharathi Knitting V/s. D.H.L. Worldwide, (1996) 4 SCC 704, the Hon’ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract. Further in M/s Videocon International Ltd V/S K. Viyjayan & others 199(I) CPR 20, wherein it has been held by the Commission that for replacement of product the defect must be manufacturing and for proving manufacturing defects Expert Report is essential. Further on the judgement of Hon’ble Supreme Court in Stereocraft V/S Monotype India Ltd, New Delhi 2000, NCJ SC (59), has clearly held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period. The consumer can only claim repairing of the product if permissible under the terms of Service contract or warranty.

The O.P No. did not appear in this case and he is set expartee.

3. In both of the case it is found that the Complainant purchased the handset from one of the dealer/Retailer of the O.P No. 1. Hence the Complainant is a consumer of the O.Ps as per Consumer protection Act. Further as per the version of O.P No. 1, the O.P No. 2 having excellent setup for sales servicing of its products, which are manned by qualified and experienced personnel. In this case the o.P No. 2 who has manned by qualified and experienced personnel received the mobile without objection that the handset was “Liquid Damaged”. Even he did not mentioned anywhere in the invoice of bill given by him to the Complainant. So there was not proved that the handset was “Liquid Damaged”. The Complainant submitted the handset for third time for repairing before the O.P No 2 and thereafter the Complainant has visited the service centre i.e O.P No. 2 so many times for the same manufacturing defects but the cell phone set could not be repaired till date. It is clearly found the deficiency of service and unfair trade practice of the O.Ps. . Further the dealer/Retailer from whom the Complainant purchased the handset is not responsible for any manufacturing defects. Only the manufacturer or authorised service centre is responsible for removal of the defect. Hence both the O.P are jointly liable for giving compensation to the Complainant.

It is therefore ordered that the Complaint Petition filed by the Complainant is allowed on contest. The O.Ps are directed to replace the defective cell phone or refund Rs. 26,000/- toward price of the cell phone to the Complainant, Rs. 10,000/- towards mental agony, physical agony, financial loss, harassment and deficiency in service to the Complainant within 30 days from the date of this Order failing which the amount will carry interest @ 9% per annum till realization.

Order pronounced in the open Court today on 18th day of July, 2022.

Free copies of this order to the parties are supplied.