Kerala

Idukki

CC/170/2019

Akhil S Nair - Complainant(s)

Versus

kripa Communication - Opp.Party(s)

11 Aug 2022

ORDER

DATE OF FILING : 3.10.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  11^th  day of  August,  2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.170/2019

Between

Complainant                                            :     Akhil S. Nair,

                                                                      Adimali Bike Palace,

                                                                      Adimali P.O., Adimali.

           (By Adv: Shiji Joseph)

And

Opposite Parties                                       :  1.  Kripa Communication,

                                                                      353/8 G2, 1^st Floor,

Kunnathu Building,

                                                                       Near Supplyco People Bazar,

                                                                      Kallarkutty Road, Adimali P.O.,

                                                                      Adimali.

                                                                      Represented by its Proprietor.

     2.  Samsung India Electronics Pvt. Ltd.,

                                                                      Head Office, 20^th to 24^th Floor,

                                                                      Horizon Centre, Sector 43, Gurgaon,

                                                                      Hariyana – 122 002

                                                                      Represented by its Chairman

                                                                                And Managing Director.

          (By Adv: Lissy M.M.)

O R D E R

 

SRI. AMPADY K.S., MEMBER

 

Allegations raised by complainant are as under :

 

          The complainant is residing in the above shown address.  The 1^st opposite party is the authorised service centre of the 2^nd opposite party.  2^nd opposite party is the manufacturer of the Samsung mobile phones and the Chairman of 2^nd opposite party as per law is competent to represent the 2^nd opposite party.  The complainant purchased a mobile phone manufactured by the 1^st opposite party for Rs.51,990/-.  The complainant purchased the phone from the shop at Land Arc building, Adimali.  In June 2019, the phone fell down from the complainant and the touch screen was completely damaged.                                                                                                                   (cont.....2)

• 2  -

The complainant in June 2019 entrusted the mobile phone with the 1^st opposite party for replacing the screen.  The 1^st opposite party gave estimate of Rs.14,953/- for replacing the touch screen and the complainant paid the amount.  When the complainant received back the phone form the 1^st opposite party, it was noticed that the entire phone was changed.  The IMEI number of the phone is changed.  The IMEI number of the phone is the identity of the phone and it is printed on the case of the phone that was changed by the 1^st opposite party.  The complainant brought the matter to the notice of the 1^st opposite party and the opposite party assured the complainant that he would brought back the case and board of the phone which was accidently fitted to a phone used by somebody at Koompanpara.  However in spite of repeated demands of  complainant, 1^st opposite party has not given back the original phone.  The 1^st opposite party carelessly handled the phone entrusted with the 1^st opposite party for repair.  This caused a loss of Rs.51,990/- to the complainant.  Since the 1^st opposite party is working under the 2^nd opposite party,  2^nd opposite party is also jointly and vicariously liable to pay compensation to the complainant.  Hence he prayed for following reliefs. 

a)  The opposite parties may be asked to pay Rs.51,990/- to the complainant.

b)  The opposite parties may be asked to pay Rs.10,000/- as compensation.

c)  Rs.5000/- may be allowed as cost of the complaint.

         

          First opposite party not appeared in spite of service of notice.  Hence 1^st opposite party was set exparte.  2^nd opposite party filed detailed written version, in the following lines.

 

          The complainant has filed the instant complaint without verifying the facts and exercising reasonable due diligence and therefore has wrongly impleaded 2^nd opposite party as party to the complaint.  That the present reply on behalf of Samsung India Electronics Pvt. Ltd. – 2^nd opposite party has been signed, verified and filed by Mr. Anup Kumar Mathur, who has been authorised by Samsung India Electronics Pvt. Ltd., vide a Power of Attorney (PoA) signed by the Director and Chief Financial Officer, Samsung India Electronics Pvt. Ltd., to defend, contest, file Consumer Court cases in India.  A copy of the PoA dated 1.1.2019 is annexed herewith.  That this opposite party wishes to submit the following preliminary objections which go to the very root of maintainability of  the  present  complaint  before  this  Commission  and  as such are required to be considered before entertaining the complaint on its merit.  That the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed under Section 26 of Consumer Protection Act.  In the Samsung handset if some defects are noticed, that will not automatically come within the meaning of manufacturing defect and there may be possibility for that defect due to mishandling, improper handling, or any other reasons also which could be rectified, and that is why, the  Consumer  Protection Act contemplates, expert opinion when the defect is not                                                                                                                            (cont.....3)

• 3  -

visible.  When the complainant raised complaint for broken display due to the set fallen from hand, the service centre provided appropriate services to the complainant and replaced the display with a new one and also provided the complainant with a new back over and delivered the set to the complainant which the complainant checked thoroughly before taking delivery and received it after his satisfaction.  After few days he complained of IMEI number changing without understanding the technicalities.  When the complainant complained of display being broken he was provided with a new display / LCD replacement and also he was provided with a new back cover but he assumed that the IMEI number changed as it was not mentioned in the back cover.  But the IMEI number or the International Mobile Equipment Identity number is a unique number for every phone and specifically for every SIM slot which is stored in the Encrypting File System (EFS) in the motherboard of the phone.  The EFS not only stores IMEI number but also contains MEID, Serial number, Config, Diag settings and radio settings, etc. so if at all the EFS folder is lost the same shall bring about an incredible disaster on the phone device such as no IMEI information, base band unknown, no radios and so on which mean the device shall no longer be recognized by the mobile phone carrier.  But in the case of the complainant it was just that the sticker was not there in the back cover as a new back cover was provided to the complainant which means the IMEI number which is stored at the EFS of the motherboard has not changed.  The complainant can simply type *#06# in the dial pad of the phone and press call button and he will be able to see the IMEI number of phone and thus the complaint raised by the complainant is simply a frivolous complaint which deserves to be struck down at the preliminary stage itself.  There exist no service issues or manufacturing defects in the said handset and regarding the IMEI number the same is stored at the EFS level of the set which cannot be changed.  That it is humbly submitted that this Commission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act, 1986. 

 

          That the complainant had also lodged a complaint at the 2^nd opposite party’s service centre and proper service was provided to the complainant.  That after inspecting the handset the service centre replaced the display in the said handset which occurred due to mishandling and physical damages caused to the handset.  That the complainant alleged that the opposite party service centre while replacing the display of the handset also replaced the phone altogether as IMEI number was missing in the back cover but which is not true as it is pertinent to mention that the IMEI number is always in the EFS level of the motherboard.  Therefore, the opposite party did not commit any deficiency in service to the complainant and is not responsible for any such deficiency in service or unfair trade practices.  The allegations of change in IMEI number are false and frivolous and even today if the complainant visits the service centre, as a goodwill gesture,

                                                                                                                          (cont....4)

• 4  -

he shall be provided proper education on how to trace the IMEI number in the set.  A copy of warranty terms and condition is annexed herewith.  That it is humbly submitted  before the Commission that the complainant has suppressed material facts, facts which only shows no IMEI number was printed on the back cover of the said handset and that the IMEI numbers are stored in the EFS level of the motherboard which cannot be changed during repair of the handset.  Also that there were not manufacturing defects in the handset within the warranty period and no manufacturing defects were found in the said handset by the service centre.  The complainant was given proper instructions on how to trace the IMEI number in the set and which the complainant failed to follow and understand.  This only shows that there were no service issues or manufacturing defects in the set and never the IMEI number could have been changed in the set.  Thus, the present allegations of unfair trade practices and deficiency in service as alleged by the complainant in his complaint is a complete abuse of the process of law for illegal gains and to harass the opposite party and which needs to be struck down by the Commission at the preliminary stage itself.  The opposite party has acted as per terms and conditions of warranty and in compliance with law.  Therefore, as per Section 2(1)(g) of Consumer Protection Act, these cannot be termed as deficiency in service.

 

          That the present case is gross abuse to the process of law and has been filed with ulterior motives and malafide intentions and hence needs to be dismissed.  The complainant claimed refund of Rs.51,990/- along with Rs.15,000/- which is inappropriate on the complaint’s behalf and should be dismissed for the above objections raised by the answering opposite parties.  The complaint is liable to be dismissed on grounds that there was no deficiency in rendering service, on the part of opposite parties, nor did they indulge into unfair trade practice.  That the contents of the para 1 of the complaint regarding the residence of the complainant doesn’t concern the answering opposite party and the answering opposite party have no personal knowledge and thus left unanswered.  He may be put to strict proof of the same.

 

That the contents of the para 2 regarding the purchase details are all matters of record and does not require any specific traversing.  That the contents of the complaint though do not concern the answering opposite party fully but is accepted to the extent that the complaint was lodged for defects in handset, but regarding the missing IMEI number in the handset the answering opposite party refers to the preliminary objections mentioned above.  The complainant may also be directed by the Commission to produce expert evidence.

 

The contents of para 4 to 5 are denied.  That regarding the averments of the complainant regarding functioning of the handset, repair, charges paid, replacement etc. which are denied and disputed and is accepted to the extent that the complaint was

                                                                                                              (cont.....5)   

• 5  -

lodged by the complainant and proper service was provided to him, the complainant may be put to strict proof of any contrary contention.  It is wrong and denied that the board of the handset was accidently fitted to a phone used by somebody at Koompanpara.  The complainant may be directed by the Commission to produce expert evidence.  As to contents regarding missing IMEI number and deficient service from opposite party side, the same are denied.  The opposite party did not commit any deficiency in service to the complainant and is not responsible for any such deficiency in service or unfair trade practices.  That the contentions of the complainant for unfair trade practices and physical harassment are denied in full and the action of the opposite parties were in accordance with the warranty terms and conditions.  Also the 1^st and 2^nd opposite parties works on principal to principal basis and one is not an agent of the other.  That the answering opposite parties or their agents, dealers, service centre has not committed any deficiency of service and unfair trade practice to the complainant and is not responsible or liable for the payment of any amount to the complainant and complainant should be put to strict proof of the contention advanced.  That the contents of para 7 are denied.  That no cause of action ever arose against the answering opposite parties.  That the contents of para 8 and the prayer are denied.  The opposite party shall not be liable to pay compensation as no IMEI number was ever changed and it is a frivolous complaint and the same can be known just by dialling *#06#.  Therefore, the allegations of missing IMEI number are fictitious and frivolous and hence should be dismissed by the Commission.

 

          That it is stated that no cause of action ever arose against 2^nd  opposite party – Samsung India Electronics Pvt. Ltd. or any other opposite party and there is no deficiency of service or negligence on the part of the 2^nd opposite party or their officials, agents, in light of what is stated above and the same is not being repeated herein for the sake of brevity. 

 

          Second opposite party relied on following orders of Hon’ble Supreme Court and National Commission.

1.  C.N. Anantharam Vs. Fiat India Ltd. and others (AIR 2011 SC 523, (2011) ISCC 460.
2. Bharathi Knitting Vs. DHL Worldwide (1996) 4 SCC 704.
3. M.J. Abraham Vs. Angel Agencies and others, III (2000) CPJ 544.
4. Classic Automobiles Vs. Lila Nand Misra and another I (2010) CPJ 235 (WC)

 

Evidence in this case includes oral evidence of complainant and examined him as PW1.  Exts.P1 to P3 marked.  No oral evidence is adduced by 2^nd opposite party.  2^nd opposite party filed copy of a document being warranty card. 

 

          Complainant filed argument notes.  Counsel for 2^nd opposite party is heard. 

                                                                                                                        (cont...6)

• 6  -

          We have examined the contentions of both sides and perused the records.  On a careful examination of same, following points arise for consideration.

a)  Whether there is any deficiency in service on the part of opposite parties ?

b)  Whether the complainant is entitled to get price of the phone and compensation as prayed for ?  (c)  Costs ?

 

Point No.1 :

 

          In this case, complainant’s allegation is that opposite party has changed the outer cover of the phone on which IMEI number was inscribed without the consent of the complainant and fitted another cover having no such IMEI number.  His contention is that as 1^st opposite party is appointed by 2^nd opposite party, they are jointly and severally liable for the acts done by 1^st opposite party.  On the other hand, 2^nd opposite party contended that IMEI number is stored in the encrypting file system (EFS) in the mother board of the phone.  It can be verified by simply typing *#06# in the dial pad of the phone and press the call button and he will be able to see IMEI number of his phone.  But 2^nd opposite party has no case that no such IMEI number is inscribed on the original cover of the phone.  It is also admitted by them that cover is changed by 1^st opposite party. Parts were supplied by the manufacturer, i.e., 2^nd opposite party in this case. After paying the price of product, it became the absolute property of the buyer.  Neither the authorised service centre, nor the manufacturer has right to change any parts without the approval of the owner  of the product, especially when there was no request for change of the cover which is evidenced by Ext.P3 issued by 1^st opposite party.  In this, it is noted that on inspection of the product, LCD and TAPE need replacement.  Non-appearance of 1^st opposite party before this Commission shows that allegations raised by  complainant is true.  From these, it is clear that unauthorised change of phone cover is a deficiency in service on the part of 1^st opposite party.  Coming to the liability of 2^nd opposite party being the principal of 1^st opposite party, it is an admitted fact that 1^st opposite party is the authorised service centre of 2^nd opposite party.  Every such service centre is appointed by manufacturers by executing proper agency agreement.  2^nd opposite party has not produced any evidence to establish that relationship between 1^st and 2^nd opposite parties are principal to principal basis which is quite unknown in this field.  Judgments and orders relied on by 2^nd opposite party is not applicable to the facts of this case. Document produced by complainant has no relevance to the facts of this case.  From the above, it can be safely concluded that relationship between them is that of principal – agent basis.  Position being this, 2^nd opposite party is also having liability for the acts done by 1^st opposite party.  So there is joint responsibility on them.  Considering the entire aspects of the case, we find that there is deficiency in service on the part of opposite parties, though not so grave as alleged in complaint.  Hence complainant is entitled to get reasonable compensation of Rs.5000/-.  Point No.1 is answered in the affirmative.                                                                                  (cont...7)

• 7  -

 

Point No.2 :

 

          Complainant claimed refund of Rs.51,990/- being the price of the phone along with compensation of Rs.10,000/-.  In this case, complainant himself admitted that he has no allegation of any manufacturing defect in the phone.  In such a circumstance, complainant is not entitled to get the price of the phone.  Hence  this prayer is declined.  Regarding compensation, we already found that complainant is entitled to get compensation of Rs.5,000/- for the deficiency in service on the part of opposite parties.  So Point No.2 is answered accordingly. 

 

Point No.3 :

 

          Considering the entire aspects of the case, we find that complainant is entitled to litigation cost of Rs.2,000/-.

 

          In the result, complaint is allowed in part as follows :

 

1.  Opposite parties 1 and 2 are directed to pay a total amount of Rs.5,000/- as compensation to the complainant for deficiency in service on their part.
2. Opposite parties 1 and 2 are also directed to pay Rs.2,000/- as litigation costs to the complainant.

 

Above amounts should be paid within 30 days of receipt of this order, failing which the complainant is entitled to recover the same from opposite parties with interest at the rate of 10% per annum, except on costs, from the date of complaint till full realisation. 

 

                Pronounced by this Commission on this the   11^th   day of August, 2022

         

 

                                                                                                    Sd/-

SRI. AMPADY K.S., MEMBER

 

                                                                                                    Sd/-

  SRI. C. SURESHKUMAR, PRESIDENT

 

                              Sd/-

SMT. ASAMOL P., MEMBER

 

                                       

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        -   Akhil.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -   tax invoice.

Ext.P2    -   acknowledgement of  service request.

Ext.P3    -   estimate from Kripa Communications.

On the side of the Opposite Party :

Nil.

 

 

                                                                                          Forwarded by Order,

 

 

 

                                                                                    ASSISTANT REGISTRAR