DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Thursday the 24^th day of October 2024

CC.202/2018

Complainant

                        Radhish,

S/o. Radhakrishnan,

Opp. Govt. Engineering College,

P.O. West Hill, Kozhikode.

(By Adv. Sri. P. Lyvins)

Opposite Parties

1.              3G Mobile World,

Landship Mall,

6/42 B&B1, Ground Floor,

Mavoor Road Junction,

Kozhikode – 673001

2.               Samsung India Electronics Ltd,                                                                                                                                                                                                                                                                                                                                                                                  20^th to 24^th Floor, Two Horizon Centre,

Golf Course Road, Sector 43,

DLF, PH V, Gurgaon,

Haryana – 122262

(OP1 By Adv. Sri. Dilkhush. V.K,

OP2 By Adv. Sri. Manimangalath Sameer Babu)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 04/01/2018 the complainant purchased a Samsung Galaxy Note- 8 mobile phone manufactured by the second opposite party from the first opposite party for an amount of Rs. 73,290/-. Out of this, an amount of Rs. 4,581/- was paid to insure the device.

3. But after one month of purchase, the screen of the mobile phone started complaint in the display. Consequently, the device was entrusted to the first opposite party for repairs. After repeated requests, the complainant received back the repaired phone from the first opposite party. But before leaving the service showroom, while the complainant was checking the phone by putting the SIM Card in the device in the presence of the employees of the first opposite party, the device bursted with a sound. The complainant again entrusted the device to the first opposite party who had promised to replace it.
4. But no positive action was taken by the opposite parties in this regard despite repeated requests. The complainant tried to contact the customer care. No proper reply was given by the opposite parties and they have not replaced the handset.
5. On 27/04/2018 a lawyer notice was issued to the opposite parties. The first opposite party, though received the notice, did not respond. The second opposite party sent a reply containing untrue facts. The act of the second opposite party in manufacturing a defective mobile phone and act of the first opposite party in selling the same and further act of delayed service amount to unfair trade practice and deficiency of service. The complainant was put to mental agony and other difficulties due to the act of the opposite parties. Hence the complaint to direct the opposite parties to replace the handset with a new one or refund the price and to pay compensation of Rs. 1,00,000/-.
6. The second opposite party has resisted the complaint by filing written version. The first opposite party was set ex-parte and the version filed by the first opposite party subsequently was not accepted by our learned predecessors-in-office.
7. The second opposite party has admitted that on 04/01/2018 the complainant had purchased the mobile handset in question, which was manufactured by them. On 06/04/2018 the handset was brought to the service centre with a complaint on display and battery. Accordingly, the display and battery were replaced free of cost as per the warranty terms and the unit was given back to the complainant on 09/04/2018. On the same day itself, the complainant again approached the service centre with another complaint and on inspection the service engineer found that the handset was physically damaged and hence the complainant was informed to pay the charges for the service. But it was not approved by the complainant who demanded free of cost repair. It was not possible since the warranty is not applicable to damaged case. The complainant was given an estimate for service, but he was not ready. There is no manufacturing defect to the product. There was no deficiency of service or unfair trade practice on the part of the second opposite party. With the above contentions, the second opposite party prays for dismissal of the complaint.
8. The points that arise for determination in this complaint are;

1. Whether there was any unfair trade and business practice or deficiency of service on the part of the opposite parties, as alleged?

2) Reliefs and costs.

9.  Evidence consists of the oral evidence of PW1 and Exts A1to A6 on the side of the complainant. No oral evidence was let in by the second opposite party. Exts B1 to B5 were marked. 
10. Point No 1:   The complainant has approached this Commission alleging unfair trade and business practice and deficiency of service on the part of the opposite parties. The complainant had purchased from the first opposite party a Samsung Galaxy Note -8 mobile phone paying Rs. 73,290/- on 04/01/2018. Out of Rs. 73,290/-, Rs. 4,581/- was the insurance amount of the device. The device was manufactured by the second opposite party. The specific allegation of the complainant is that the device was having manufacturing defect and there was delayed service on the part of the  opposite parties. The prayer in the complaint is for replacement of the defective mobile handset with a brand new one or in the alternative, refund of the price. Compensation to the tune of Rs. 1,00,000/- is also claimed for the mental agony suffered by the complainant.
11. The complainant was examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. In the cross examination by the second opposite party, PW1 has stated that the mobile phone in question is still in the custody of the first opposite party. PW1 has further admitted in the cross examination that there were no latches or deficiencies on the part of the second opposite party. Ext A1 is the retail invoice dated 04/01/2018, Ext A2 is the GDOT protection certificate, Ext A3 is the copy of the lawyer notice dated 27/04/2018, Exts A4 and A5 are the postal receipts and Ext A6 is the postal acknowledgement card. Ext B1 is the copy of the power of attorney, Ext B2 is the copy of the acknowledgement service request, Ext B3 series are the images of the device, Ext B4 is the warranty policy and Ext B5 is the reply notice dated 14/05/2018.
12. As already stated, it is not disputed that the complainant had purchased the mobile handset manufactured by the second opposite party from the first opposite party on 04/01/2018. It is not disputed that on 06/04/2018 the handset had complaints of display and battery and the display and battery were replaced under warranty and the device was delivered back to the complainant on 09/04/2018. According to the second opposite party, on that day itself, the device was physically damaged and was brought for service. As physical damage was not under warranty, the complainant was required to pay the repair charges, for which, he was not ready. It is not disputed that physical damage is not covered under the warranty.
13. The complainant is alleging manufacturing defect to the device. But apart from a vague averment made in the complaint and repeated in the proof affidavit, the complainant has no specific allegation as to any such manufacturing defect in the device. The complainant has failed to place on record any technical/expert report to support his allegation that the device is having manufacturing defect. Not even a single document has been placed on record to support the allegation that the device suffers from manufacturing defect. Moreover, PW1 has admitted in the cross examination that there is no deficiency of service on the part of the second opposite party. For the aforesaid reason, we are of the view that no unfair trade and business practice or deficiency of service can be attributed against the second opposite party.
14. But as far as the first opposite party dealer is concerned, it may be noted that the handset is still in their custody and they failed to produce the same before this Commission despite specific order of our learned predecessors-in-office in IA No. 480/2019 filed by the complainant. No explanation is offered by the first opposite party for the non-production of the device before this Commission. As already stated, it is true that physical damage is not covered under warranty. But at the same time, it may be noted that the first opposite party had collected an amount of Rs. 4,581/- from the complainant to insure the device. The said amount is mentioned in Ext A1 retail invoice issued by the first opposite party. Ext A2 insurance certificate shows that the period of insurance is from 04/01/2018 to 03/01/2019. It is specifically stated in Ext A2 that the protection certificate covers accidental physical damage and the sum insured is Rs. 67,900/- ie, purchase price plus tax. There is no explanation forthcoming from the part of the first opposite party for not providing the complainant the benefit of Ext A2 protection certificate issued by them. There is nothing to show that the complainant is not entitled to the benefit under Ext A2 or that he has violated any conditions of Ext A2. The first opposite party has collected Rs. 4,581/- towards insurance and their act of not providing the benefit under Ext A2 to the complainant amounts to unfair trade and business practice and deficiency of service.
15. It may be noted that the first opposite party has opted to remain absent. It is also seen that the first opposite party has not responded to Ext A3 lawyer notice which was duly served on them as evidenced by Ext A6. If the allegations contained in Ext A3 were not true and correct  nothing prevented the first opposite party from sending a reply to Ext A3 stating the real facts. But that was not done. This is also a strong circumstance which goes against the first opposite party.
16. As already stated, the device is in the custody of the first opposite party and they have neither produced the same before this Commission pursuant to the order in IA No. 480/2019 nor did they offer any explanation in this regard. The first opposite party has no right to retain the device indefinitely. The device has now become a worthless product as far as the complainant is concerned. The complainant was not able to use the mobile handset which he had purchased spending more than Rs. 73,000/-. Undoubtedly, the complainant was put to intense mental agony and inconvenience due to the unfair trade and business practice and deficiency of service of the first opposite party. The complainant deserves to be compensated adequately. Considering entire facts and circumstances, we are of the view that a sum of Rs. 75,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings from the first opposite party. The second opposite party is entitled to be exonerated. Point found accordingly.    
17. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.202/2018 is allowed.

b) The first opposite party is hereby directed to pay a sum of Rs. 75,000/- (Rupees seventy five thousand only) as compensation to the complainant.

c) The first opposite party is directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as cost of the proceedings to the complainant.  

d) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 75,000/- shall carry an interest of 9% per annum from the date of this order till actual payment.

e) The second opposite party is exonerated.

Pronounced in open Commission on this, the 24^th  day of October, 2024.

Date of Filing: 27/07/2018

                                    Sd/-                                                              Sd/-                                                Sd/-

                            PRESIDENT                                                 MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Retail invoice dated 04/01/2018.

Ext.A2 – GDOT protection certificate.

Ext.A3 – Copy of the lawyer notice dated 27/04/2018.

Ext.A4 – Postal receipt.

Ext.A5 – Postal receipt.

Ext.A6 – Postal acknowledgement card.

Exhibits for the Opposite Party

Ext.B1 – Copy of the power of attorney.

Ext.B2 - Copy of the acknowledgement service request.

Ext.B3 series- Images of the device.

Ext.B4 - Warranty policy.

Ext.B5 - Reply notice dated 14/05/2018.

Witnesses for the Complainant

PW1 -  Radhish Rashid (Complainant)

                                          Sd/-                                                              Sd/-                                                Sd/-

                                 PRESIDENT                                                  MEMBER                                       MEMBER

True Copy,      

                                                                                                                                                      Sd/-

                                                       Assistant Registrar.