BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 4th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.180/2014
(Admitted on 20.05.2014)
Mr. Akhil,
S/o A. J. Sabastain,
Aged about 23 years,
Corporation Bank, Nellyady Branch,
Nellyady, Puttur Taluk, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
1) Managing Director,
Samsung India Electronics Pvt Ltd,
8.1, Sector 81, Phase 2, Noida District,
Goutham Budha Nagar,
Uthara Pradesh.
2) Manager,
Sangeetha Mobiles Pvt. Ltd,
258/2A, Balmatta Complex,
Balmatta Road, Mangalore 02.
3) Proprietor,
Samsung Service Centre,
Pais Building, Main Road,
Yelmudi, Putture, D.K.
….....OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri KGS)
(Advocate for the Opposite Party No.2: Sri SNM)
(Opposite Party No.3: Exparte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he purchased a Samsung Cellular Phone Galaxy S Dous 2 No.351602060120084 mobile hand set on 9.12.2013 manufactured by opposite party No.1 and sold by opposite party No.2 and within a day of purchase the phone had error in network searching and when phone was not used for 20 minute interval it was not connecting to internet and battery got discharged while the above problem occurred. Immediately complainant approached opposite party No.2 with the problem and he did not given satisfactory answer. On 11.12.2013 complainant sent Gmail to opposite party No.2 who reply he should visit 3rd opposite party the service centre for replacement. Opposite party NO.3 also did not respond properly and approached opposite party No.1 and No.2 again approached opposite party No.3 as per directions. In view of recurring problems got issued legal notice without any proper comply and seeks the relief claimed in the complaint.
II Opposite party No.1 in the written version claims under 1 year warranty can provide free service or free replacement of the spare parts only. There is no obligation on the part of the company to replace or refund the product cost as per demand of the customer. As per tax invoice produced by complainant the mobile cost is only Rs.10,227/ and is not responsible for other items of worth of Rs.203.74 sold by the dealer and also the vat paid by complainant. Complainant sought entire amount at the cost of the opposite parties. It is further claimed the complainant visited service centre and expressed his intention to purchase high end model and wanted from the service centre that mobile set purchased by him is defective which was not obligation there was network problem to connect to the internet. Fraud played by complainant the service centre rejected the demand. Complainant also alleged lot of battery discharge due to not connection to the network with hand set try again the complaint on this count is not maintainable. Mere production of email correspondence is not the establishment of defect in the product there is no deficiency in service on the part of the opposite party No.1.
2. Opposite party No.2 also field version claiming that it is only a Pvt Ltd company dealing with sale of various kinds of mobile handsets of various manufacturers through its network outlets situated across Karnataka. The complainant purchased the mobile manufactured by opposite party No.1 from opposite party No.2. First party is only responsible for the claims if any. It is only 3rd opposite party is responsible to set-right the mobile hand set and opposite party No.2 is not the manufacturers not the authorised service centre of the manufacturer. Hence seeks dismissal of the complaint.
3. In support of the above complainant Mr. Akhil filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite parties Mr. Anindya Bose (RW1) Deputy General Manager-Customer Satisfaction, also filed affidavit evidence and not answered to the interrogatories served on him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both side filed notes of argument. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Negative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): Complainant has purchased a mobile hand set from opposite party No.2 manufactured by opposite party No.1 is undisputed. He had taken hand set to opposite party No.3 when there was a problem who is service centre of opposite party No.1. Hence there is relationship of consumer and service provider between the complainant and opposite parties is established. In the respect of dispute the complainant claims from day one of the purchase of the hand set from opposite party No.2 it started problem and wanted replace but that was disputed by opposite parties. Hence there is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No. (ii): Complainant contends the on very day of the purchase there was problem in getting the network connection and also of the battery draining within 20 minutes when he approached opposite party No.2 he was asked to approached opposite party No.3 the service centre when he approached opposite party No.3 to the question in the interrogatories posted on behalf of opposite party No.2 to complainant at question No.12 as to when the complainant had taken any expert opinion the answer is that the signal strength is very good and not making the question post to the complainant.
2. Mr. Anindya Bose, Deputy General Manager Customer Satisfaction, in M/s Samsung India Electronics (P) Ltd i.e. opposite party No.1 in the affidavit evidence filed at para 5 mentions complainant on receipt of their service centre expressed his intention to purchase high end model and as such sought fake certificate from their service centre as to detect so that he can get report from the company and that the complainant never handed over his device for service centre. When interrogatories were served on opposite party No.1 i.e. RW1 has filed affidavit evidence to whether opposite party No.3 had informed in writing that the complainant has demanded fake certificate. No answer was furnished by RW1 as already mentioned to the interrogatories had no reply is furnished by RW1 and learned counsel on 25.4.2017 submitted RW1 has no reply to interrogatories. The sole ground on which opposite party NO.1 clings is the alleged refusal of complainant to handover the hand set to opposite party No.3 i.e. service centre for the verification of the defects and RW1 not answered to the specific question. On this count that as to whether opposite party No.3 informed opposite party No.1 in writing that complainant demanded fake certificate. To the specific question asked to complainant in interrogatories filed on behalf of opposite party No.1 at question No.15 complainant demanded of fake certificate the answer given by complainant was in the negative.
15. You demanded the service centre to give fake certificate to certify that the product is defective?
Ans: I say it is not true.
3. Thus we are left with the evidence of complainant supported by Gmail response issued on behalf of opposite party No.2. Ex.C2 is the request made with the error. He also mentioned at Ex.C2 in internet he cannot access internet in sim slot and battery gets discharged so fast corresponding with the mentioned problems No.1. In the reply issued to complainant on behalf of opposite party No.2 there was a promise made to replace hand set within 24 hours of the purchase and the brand SC within 7 days of purchase and request to send to the service centre and made job sheet for the further assistance. In respect of job card when complainant approached opposite party No.3 he had mentioned that opposite party No.3 refused to issue any job card by mentioning that the hand set is alright. However the claim made by opposite party No.1 is inconsistent with this statement sought to as complainant refused to hand over the hand set to opposite party No.3 and demanded a fake certificate with interest to buy a higher handset produced to opposite party No.1.
4. Learned counsel for opposite party No.1 has drawn our attention to the reported case of the National Consumer Disputes Redressal Commission, New Delhi in I (2010) CPJ 235 (NC) Classic Automobiles vs Lila Nand Mishra & Anr referring to various provisions of C P Act 1986 inter alia it is held:
(i) Consumer Protection Act, 1986-Sections 2 (1)(f), 2 (1)(g), 13 (1)(c) Motor vehicles Manufacturing defects Complaint allowed by Forum Joint and several liability imposed on manufacturer and dealer Manufacturer absolved in appeal Entire liability fixed on dealer Hence revision Onus to prove manufacturing defect lies on complainant No expert evidence produced to prove manufacturing defect in vehicle Alleged defects cannot be termed as manufacturing defect Vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects Manufacturing defects in vehicle not proved.
5. In this case even according to complainants admission in answer to interrogatories filed on behalf of opposite party No.1, opposite party No.3 the service centre refused to give any job card and the reason stated is the mobile is in order. In order to substantiate the mobile is not in working condition even when the complaint is lodged by the complainant did not produce the mobile before the Forum.
6. In Tata Motors vs Rajesh Tyagi & Anr I (2014) CPJ 132 (NC) by referring to 2(1)(f) 2(1)(g) and 21(b) of C P Act. When there was on admission on the part of opposite parties of allegation it was held that
Consumer Protection Act, 1986 Section 2(1)(f), 2(1)(g), 21(b)Motor Vehicle Manufacturing defect Warranty period Repair not done Alleged deficiency in service District Forum dismissed complaint State Commission allowed appeal Hence revision Non ambiguous admission on part of opposite parties that allegation levelled in complaint about defect of water accumulation inside vehicle are true Whenever there is implied contract that vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in quality, quantity, potency and standard which is required to be maintained Manufacture and dealer are permitted to carry out necessary repairs in vehicle, make it defect free and hand it over to consumer along with certificate.
7. In Maruti Udyog Ltd vs Susheel Kumar Gabgotra and another (2006) 4 SCC 644 while considering as to whether on if manufacturing defects is on facts when the replacement of the entire item only is called for by referring it is held:
Consumer Protection Act, 1986 Ss.14(1)(a) & (d), 18, 22 and 23 Manufacturing defect If established, on facts Relief Replacement of the entire item or replacement of defective parts only called for Purchase of car Defect in a part Delay and negligence in removal of defect Warranty undertaking to repair or replace the defective part free of cost Clutch assembly developing defect Seller erroneously advising the buyer to take the car to K in another city and buyer doing according Realising the error; the seller asking the buyer to leave the vehicle at the workshop for downing of the engine but the buyer not agreeing In such circumstances inference of any manufacturing defect in the car, held, not justified Hence, High Courts direction for replacement of the car, held, not justified Defective part (clutch assembly) directed to be replaced without any charge and a consolidated sum of Rs.50,000/ awarded to the buyer for cost of travel to K, for inconveniences resulting from seller’s acts and towards cost of litigation.
8. However the learned counsel for complainant referred to a reported case of NC in II (2016) CPJ 111 (NC) Godrej and Boyce Mfg. Co. Ltd. Vs Raj Kumar Maini & others in this case it is held:
Consumer Protection Act, 1986 Section 2(1)(f), 2(1)(g), 14(1)(d), 21(b) Air Conditioner Manufacturing defects Non rectification Gas pipeline broken Warranty period Mental agony and harassment Deficiency in service Refund along with compensation sought District Forum dismissed complaint State Commission allowed appeal Hence revision From endorsement of complainant it is established that defects are still existing When gas pipe was broken it should have been replaced State Commission held that small pieces if snow and smoke were observed at time of opening and closing of A.C.Manufacturing defects established Complainant is entitled to get refund along with compensation.
On the other hand as we can see from the admission of complainant that the statement made by opposite party No.3 when he took his mobile for repairs and certificate sought by opposite party No.2 and job card that was admittedly refused and the reason assigned as per complainants admission that mobile is in working condition. In view of the above case laws we are of the view that complainant failed to establish any manufacturing defect in the mobile purchased by him from opposite party No.1. As such complainant failed to prove deficiency in service. Hence we answer point No.2 in the negative.
POINTS No. (iii): Wherefore the following
ORDER
The Complaint is dismissed.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 11 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 4th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainants:
CW1 Mr. Akhil
Documents marked on behalf of the Complainants:
Ex.C1: 09.12.2013: Copy of cash/credit bill
Ex.C2: 11.12.2013: Gmail sent to the 2nd O.P
Ex.C3: 12.12.2013: O/c of the reg lawyers notice
Ex.C4: 13.12.2013: Postal receipt of 1st O.P
Ex.C5: 16.12.2013: Postal acknowledgements
Ex.C6: 14.12.2013: Postal acknowledgements
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Anindya Bose, Deputy General Manager Customer Satisfaction
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 04.05.2017 PRESIDENT
