IN   THE  CONSUMER  DISPUTES   REDRESSAL  FORUM,  KOLLAM

DATED THIS THE   25^th     DAY OF MAy  2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

        Smt.S.SandhyaRani. Bsc, LLB ,Member

       Sri.Stanly Harold, B.A.LLB, Member

CC No.28/18

Biju Kurup                                        :         Complainant

Sayoojyam,

Vadakkumbhagam

Chavara South P.O

Kollam-691584

V/s

1. Manager                                   :         Opposite parties

        Master tech,

        Samsung Authorized Service Centre

        Ammachiveedu, Kollam.

2. Manager

        Samsung India Pvt.Ltd.

         Aryabhangi tower, Kadavantra P.O

         Ernakulam.

      [By Adv.Maruthadi.R.Sreeraj]

          FINAL  ORDER

E.M.MUHAMMED IBRAHIM , B.A, LLM,President

1.           This is a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act.
2.           The averments in the complaint in short are as follows:-

On 29.09.17 the complainant made telephone call to the customer care centre of CRT TV when his TV become defective.  The complainant has also duly registered his complaint.  Thereafter on 02.10.17 the technician from authorized service centre of Samsung TV by name Master tech, Ammachiveedu came and taken away  the defective TV from his residence.  For about 1 week no response was received from the authorized service centre.  Hence he made a  telephone call and enquired about his TV.  There after he contacted the customer care centre who informed that the power code of the TV has been replaced and thereby made the TV defect free.  Later he contacted the service centre over phone.  They told him that spare parts are not available and hence the defect of the TV has not been cured and the customer  care centre has intimated him that the defect of the TV has been cured for closing the complaint registered at the customer care centre.  Though he contacted the service centre on several occasions they protracted the matter by alleging one reason or other.  During the 1^st week of November he contacted the service centre and requested to return the TV.   Thereupon they informed  him that the defect of the TV could not be cured for non availability of spare parts at the production centre.  Though technical skill has been improved very much during the present age the opposite party has taken time for about 1 month to intimate the complainant that the spare parts is not available.  Again he contacted the customer care manager who informed that the service manager would suggest an alternative solution.  But there was no response from the service manager or customer care centre.  Hence he contacted the service centre and requested to return the TV but they failed to return the same till date.  But on  02.12.17 the complainant has received a message  stating that  he has to pay Rs.590/- as repairing charge of the defective TV.  On further enquiry it was revealed that the message received by him is system generated message and the same has been sent on any previous time.  However he has neither received the TV nor made him to know about the present stage of the TV.  The said TV is the only  source of entertainment to the aged parents and his minor son and same has been kept at the service centre  for the last 100 weeks without any justification whatsoever.  The service centre has also given false information to the complainant and thereby cheated him.  Hence the complainant has sustained much mental agony, loss of time apart from financial loss.  There is deficiency in service and unfair trade practice on the part of the opposite parties.  Hence the complainant prays to direct the opposite parties to pay Rs.10,000/- as compensation and also direct them to repair the defective TV.  Hence the complaint.

3.           Opposite party No.1 remains exparte after receiving notice issued from the Forum. 
4.           Opposite party No.2 filed a detailed version raising the following contentions.  The 2^nd opposite party which is a well reputed company is having a very large customer base has been wrongly impleaded in this case.  The present complaint is wholly  misconceived, groundless and unsustainable in law and is liable to be dismissed under Section 26 of the Consumer Protect Act.  If at all any defects are noticed in the Samsung TV the same will not automatically come within the meaning of manufacturing defect.  Since there is possibility of the defects being caused due to mishandling, improper handling or any other reasons and the same could be rectified and that is why the Consumer Protection Act  contemplates expert opinion when the defect is not visible.  In response to the complaint the service engineer inspected the said TV and proper service was provided to the complainant.  The complainant was also informed that there were  no manufacturing defect in the said TV.  The power  code was adjusted and the set was made alright.  Hence the manufacturing company or agent is not liable to replace the TV.  This Forum has no jurisdiction to entertain or adjudicate upon the dispute involved in the complaint as the dispute would not fall within the ambit of the provisions of the Consumer Protection Act 1986.  The complainant had a Samsung CRT TV which he used for very long time without any problem.  As per the complaint the said TV became out of order as the said TV has been suddenly stopped working .  The  onus to prove the manufacturing defect was on the complainant and  it is necessary to obtain expert opinion before saying that there is manufacturing defect.  After collecting the defective TV the service centre replaced the power code and informed the complaint to take back the TV and also informed that there were no manufacturing defect in the said TV and that defect happened due to  mishandling and violation of usage guidelines.  Therefore the defect caused to the TV if any was not due to the default on the part of the 2^nd opposite party.  The complainant has suppressed material fact that there were no defect  to the TV within the warranty period and defects if any found happened due to the mishandling, failure to take proper care, maintenance and violation of usage guidelines  and also violation of warranty terms and conditions within the warranty period provided to the complainant.  There were no manufacturing defects or any other defects in the TV at the time of sale and no such defects arose due to the manufacturing defects.  Hence the allegations of unfair trade practice and deficiency in service is only to harass the opposite parties and therefore the case has to be dismissed in-limine.  The opposite parties have acted as per the terms and conditions  of warranty and in compliance with law and therefore there is no deficiency in service.  As per the terms of warranty replacement or repair of TV free of cost under physical damages or mishandling of the TV was not mentioned.  The 2^nd opposite party is not liable to pay compensation as the defect is not occurred to the TV was not due to physical damage and that the 2^nd opposite party was never defaulted in providing any service.  The complainant has no cause of action and the complaint is only  to be dismissed with the cost of the opposite parties.

5.           In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get compensation as prayed for?
3. Reliefs and costs.

6.           Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 documents.  No evidence either oral or documentary has been adduced on the  side of the contesting 2^nd opposite party. 
7.           Though sufficient opportunity was granted both sides have not filed any notes of argument.
8.           Heard both sides.

Point No.1 &2

9.           For avoiding repetition of discussion of materials these 2 points are considered together.  The following are the admitted facts in this case.  The 1^st opposite party is the authorized service centre of Samsung TV and 2^nd opposite party is the manufacturer of the said TV.  The complainant is the owner of Samsung CRT TV and the same became defective.  The complainant has registered a complaint on 29.09.2017 by telephoning at the customer care centre.  Accordingly on 02.10.17 the person deputed from the 1^st opposite party came over at the residence of the complainant and taken the CRT TV of the complainant to the authorized service centre.  But till date the CRT TV was not returned to the complainant.  The complainant has purchased the TV during the year 2005 and he used the same till 2017.  Admittedly the said  TV is having warranty  only for 1 year.  According to PW1 the TV is having no manufacturing defect and he has no such complaint against the manufacturing company(2^nd opposite party) .  It is true that the complainant has made the Manager, Samasung India Pvt. Ltd, Eranakulam which is manufacturing company of the TV as 2^nd opposite party  and would allege that the spare parts of the defective TV is not available at the Samsung Production Unit(2^nd opposite party) and that the customer care centre of the 2^nd opposite party has mislead the complainant by stating that as the spare parts are not available the service manager(1^st opposite party) would make alternative solution. But there was no response from the 1^st opposite party.  However PW1 during cross examination would admit that he has no case against the 2^nd opposite party manufacturing company.  He has specifically admitted during cross examination of 2^nd opposite party that  TV  manufacturing company  ¡v  FXnsc ]cm-Xn-bn-Ã. þþ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-Fsâ TV ¡v manufacturing defect CÃ. The above admission of PW1 would show that he has no complaint against contesting 2^nd opposite party.

10.                  According to PW1 tISp-h¶ TV \¶m¡n Xcm-¯-Xn-\mWv Cu tIkv.  The 1^st opposite party service centre after receiving notice from this Forum remained exparty.  They have not appeared and contested the matter nor explained why the TV entrusted to the 1^st opposite party by the complainant has not been returned if spare parts  for repairing the TV is not available.  The contesting 2^nd opposite party has suggested when the complainant was in the witness box as PW1 that  there is no documentary evidence to prove that the complainant has entrusted the defective TV to the 1^st  opposite party service centre.  The above suggestion is deadly against the written version filed by the 2^nd opposite party wherein it is admitted in paragraph 8 that TV was collected from the complainant’s place, the service centre replaced the power code and informed the complainant to collect the same.  In the beginning of paragraph 8 of the written version the 2^nd opposite party would content that the complainant had also lodged a complaint at 2^nd opposite party’s service centre. Without entrusting the defective TV of the complainant to the 1^st opposite party there is no scope for lodging  a complaint against the service centre as admitted in the written version. Ext.P1 is the copy of the SMS stating thanks for availing Samsung service and also directing him to pay Rs.590/- against his request No.4246183740.  PW1 is none other than the complainant in this case.  He  has also re-iterated the above facts in the proof affidavit.  Though PW1 was subjected to severe cross examination nothing material has been  brought out to disbelieve the above version of PW1 in the proof affidavit.   In view of the above evidence it is cristal clear that the 1^st opposite party service centre has collected the defective TV of the complainant from his residence for carrying out repair work.

11.     It is  brought out in evidence that even now the TV is kept at the service centre of the 1^st opposite party.  It is also clear from the available materials that initially it was informed  by the customer care centre that power code of the complainant’s TV was defective and the same was replaced.  But on enquiry by the complainant it was revealed that no such replacement was made on his TV and was reported from the customer care centre that only to close his complaint it was informed like that and actually the defect of the TV was not cured.  In view of the above materials on record it is cristal clear that  the 1^st opposite party has made a false representation by intimating that the defect of the TV was set right by replacing the power code but it was  false and was a system generated intimation. 

12.        It is also brought out in evidence that the 1^st  opposite party though collected the defective TV from the complainant has not issued any job sheet.  It is the bounden duty of the service centre to verify the defective TV and prepare a job sheet noting the actual defects noticed during verification and also intimating the complainant the approximate cost of  repair.  But in this case the same was not done by the 1^st opposite party which also amounts to deficiency in service. The 1^st opposite party service centre ought to have issued  letter or message to the complainant to come and collect the defective TV if  he was unable to cure the defect for any reason.   

13.        In view of the materials discussed above it is cristal clear that the 1^st opposite party service centre has collected the defective TV from the complainant’s residence on 02.10.17  but not prepared any job sheet nor duly intimated the complainant regarding the defects of his TV and the approximate cost of repair nor returned the TV by curing the defects or without curing the defects for want of spare parts.  It is clear from the available materials that 2^nd opposite party has send Ext.P1 message without actually repairing the TV as claimed in the complaint. It is also clear from the available materials that the 1^st opposite party  has been keeping the defective TV  in his service centre without giving an opportunity to the complainant to set right  the defect by deputing any other responsible service technician.  In the circumstance we have no hesitation to hold that there is deficiency in service and unfair trade practice on the part of the 1^st opposite party who has been withholding the defective TV of the complainant at his service centre without returning the same after curing the defect or without curing the defect if it is not possible for any reason and also for issuing false intimation.  Non preparation of job sheet noting the defects and intimating the appropriate cost of repair of the defective TV also would amount to deficiency in service.

14.        According to the complainant as the TV has not been received back after curing the defect his aged parents and school going children lost their entertainment and he has sustained much mental agony as the TV has been keeping at the service centre for more than 100 days as on the date of complaint and thereafter till date and also due to the fact that service centre has sent false message.  In the circumstances the complainant is entitled to get a reasonable compensation. 

Point No.3

15.          In view of the reasons stated under paragraph 9 it is cristal clear  that there is no deficiency in service or unfair  trade practice on the part of the 2^nd opposite  party and hence we are  not inclined to grant any relief against the 2^nd opposite party. 

16.         It is clear from the available materials that as the defect of the TV has not been cured by the 1^st opposite party nor returned the defect free TV to the complainant till date, if he could not carry out the repair work and cure the defect for any reason beyond his control.  The 1^st opposite party ought to have  intimated the complainant either by sending a letter or by sending  SMS.  But he failed to do so.  According to the complainant the TV is the only source of entertainment to his aged parents and school going children and the non availability of the same for a pretty long period has caused much mental agony to the complainant apart from financial loss.  The above version  of the complainant which is reiterated in chief affidavit  remains unchallenged.  In the circumstance we are inclined to award a reasonable compensation, cost and also a direction to return the TV after carrying out necessary repair work if possible.

In the result the complaint stands allowed in the following terms.

1. The 1^st opposite party is directed to return the TV  in a defect free condition along with bill if any for replacing any part and repairing charge within 30 days from the date of receipt of a copy of this order.
2.  The 1^st opposite party is further  directed to pay Rs.5000/- as compensation for the mental agony sustained to the complainant.
3. The 1^st opposite party is also directed to pay Rs.3,000/- as costs of the proceedings.

4. The 1^st opposite party  is  directed to comply with the above directions within 30 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover 50%  of  the present market value of  the  said type of TV( after deducting depreciation) along with compensation and costs ordered above with interest @12% p.a from the date of complaint till realisation except for costs from the 1^st opposite party  and its assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  25^th day of  May   2020.         

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           Biju Kurup

Documents marked for the  complainant

Ext.P1                         :           Copy of SMS

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

                                                                                    Stanly Harold:Sd/-

                                                                                     Forwarded/by Order

                                                                                     Senior Superintendent