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

Friday the 29^th day of October 2024

CC.120/2020

Complainant

Ragesh. T.T,

Chainthanya House,

Oorallur. P.O, Koyilandy,

Kozhikode – 673620

(By Adv. Smt. Reshma. M)

Opposite Parties

1.               Appacell Mobile Gallery,

Samsung Smartphone Café,

Roshni Building, Vatakara,

PIN - 673101

2.               Samsung Service Centre,

0002348088 – Smart Tech,

                        1^st Floor, 21/26, QRST CVK,

Vatakara – 673101

    Suppl. 3.  Samsung India Electronic Pvt Ltd,

                      6^th Floor, DLF Centre,

                      Sansad Marg, New Delhi – 110001

                   (Supplemental OP3 By Adv. Sri. Manimangalath Sameer Babu)

                   (Supplemental third opposite party was impleaded as per order dated 27/02/2022 in IA No. 397/2022.)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

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

In March 2019 the complainant purchased a Samsung phone from the showroom of the first opposite party. There was problem in charging the device and it was entrusted to the service centre 3 times. But the issue could not be solved. The device was entrusted to the service centre for the 4^th time and they assured to rectify the defect. But the problem is not at rectified. Hence the complaint for refund of the price along with compensation.

3.  The first opposite party remained ex-parte. The second opposite party has filed written version wherein they have denied all the allegations and claims made against them in the complaint. According to the second opposite party, they are only a franchisee and Samsung India Electronics Pvt Ltd is a necessary party to the proceedings. The device is still in their possession and the complainant is not willing to take back the same insisting for replacement or refund of the price. The demand of the customer was intimated to the company and it rejected the same. The company offered 6 months warranty and it was not acceptable to the customer. Replacement or refund is not within their powers. Hence according to the second opposite party, they are entitled to be exonerated.
4. In the light of the contention of the second opposite party, the manufacturer was impleaded as supplemental third opposite party as per order dated 27/02/2022 in IA No. 397/2022.
5. The supplemental 3^rd opposite party has filed written version wherein they have also denied all the allegations and claims made against them in the complaint. The purchase of the  phone by the complainant is admitted. There was no deficiency of service or unfair trade practice on their part. Once the complaint is reported with the service centre that would be diligently and promptly attended without fail and delay. The complainant has approached this Commission suppressing material facts. The complainant is not entitled either for replacement of the unit or refund of the price. He is not entitled to get any compensation. According to the third opposite party, the complaint is liable to be dismissed.
6. The points that arise for determination in this complaint are;

      1) Whether there was any deficiency of service on the part of the opposite    

            parties,  as alleged?

2) Reliefs and costs.

7. Evidence consists of the oral evidence of PW1 and Exts A1 and A2 on the side of the complainant. No evidence was let in by the opposite parties. 
8.  Heard both sides. Brief argument note was filed by the complainant.
9. Point No 1:     The complainant purchased a Samsung mobile phone from the first opposite party on 20/03/2019 paying Rs. 22,990/-. The device had charging issues and it was entrusted to the second opposite party which is the authorised service centre 4 times for repairs. But the defect could not be rectified. Hence he is seeking refund of the price along with compensation.
10. In order to substantiate his case, the complainant got himself examined as PW1 and Exts A1 and A2 were marked. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the tax invoice dated 20/03/2019 and Ext A2 is the warranty card.
11. The first opposite party has not turned up to file version and to contest the matter. The second opposite party has expressed their helplessness stating that replacement or refund is a matter to be decided by the manufacturer. The third opposite party manufacturer has filed written version wherein they have no  definite case. They have only a vague and general denial of the allegations. None of the opposite parties have let in any evidence.
12. The complainant is seeking refund of the price of the device. At the very outset, it may be noted that to establish the claim for refund of the price or total replacement by a new device, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the device in question suffers from inherent manufacturing defect. On a careful consideration and scrutiny of the evidence in hand, it can be seen that there is absolutely nothing to show that the device is having any manufacturing defect. Even the complainant has no specific allegation in this regard either in the complaint or in the proof affidavit. The complainant has failed to place on record any technical/ expert report to support his allegation that the device manufactured by the supplemental 3^rd opposite party and sold by the first opposite party has any manufacturing defect. Not even a single document has been placed on record to show that there is manufacturing defect in the handset. In the absence of any such evidence, the prayer for refund of the price is not allowable.
13.  However, the evidence indicates that the mobile hand set purchased by the complainant spending Rs. 22,990/- began to show charging complaint during the warranty period and defect persisted even after several repairs and the same is now in the custody of the second opposite party. The second opposite party has no right to retain the mobile handset of the complainant indefinitely. The opposite parties are liable to repair/service the device and return it to the complainant in a sound working condition.
14. The complainant was deprived of the facility of using the mobile handset. He was put to severe mental agony and inconvenience due to the frequent complaint to the device. No purchaser of a new device expects this sort of mental agony. There was deficiency of service on the part of the opposite parties. The complainant deserves to be compensated adequately, though he is not entitled to get a brand new mobile set or refund of the price. Considering the entire facts and   circumstances, we are of the view that a sum of Rs. 10,000/- will be reasonable compensation in this regard. The complainant is also entitled to get Rs. 3,000/- as cost of the proceedings. The opposite parties are jointly and severally liable.   Point found accordingly. 
15. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                 a)  CC.120/2020 is allowed in part.

b) The opposite parties are hereby directed to service/ repair  the Samsung Galaxy A50 mobile handset of the complainant and return it to him  in a sound working condition within 30 days of the receipt of copy of this order . It is made clear that the complainant shall not be required to pay  any charges for the said  service/repair.

c) The opposite parties   hereby directed to pay a  sum of Rs. 10,000/- (Rupees ten thousand only) as the compensation to the complainant. 

d)  The opposite parties are directed to pay a sum of Rs. 3,000/- (Rupees three thousand only) as cost of the proceedings  to the complainant. 

e)  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. 10,000/- shall carry an interest of  9% per annum from the date of this order till actual payment.   

f) The liability of the  opposite parties  shall be joint and several.

Pronounced in open Commission on this, the  29^th  day of October, 2024.

Date of Filing:  29.06.2020

                                             Sd/-                                                           Sd/-                                                Sd/-

                                   PRESIDENT                                               MEMBER                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 - Copy of the tax invoice dated 20/03/2019.

Ext A2 - Warranty card.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1  -  Ragesh. T.T (Complainant).

Witnesses for the opposite party 

Nil.

                                         Sd/-                                                           Sd/-                                                Sd/-

                                   PRESIDENT                                               MEMBER                                       MEMBER

True Copy,  

                                                                                                                                             Sd/-

                                           Assistant Registrar.