DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 19^th day of  February 2024

                             Filed on: 04/07/2019

PRESENT

Shri.D.B.Binu                                                                            President

Shri.V.Ramachandran                                                               Member

Smt.Sreevidhia.T.N                                                                   Member                                                                   

C C. No. 265/2019

COMPLAINANT

K.M.Selmon and Sini Selmon Vadakkekanna Moolayil, Clint Road, Ambalamedu P.O., Pin-682 303, Ernakulam.

Vs.

OPPOSITE PARTIES

1. 3G Mobile World, Rambal Yuteeka Opp. Varma Hospital, Tripunithura.

(By Adv.Dilkhush V.K., “Subhra”, P.O., Kakkodi, Kozhikode-673 611)

2. Samsung India Electronics Pvt. Ltd., Palarivattom Service Centre, Ernakulam.

(By Adv.K.S.Arundas & Abheek Saha, KHCAA Chamber No.450, Near High Court of Kerala, Ernakulam)

F I N A L    O  R  D  E  R

Sreevidhia T.N., Member

1. A brief statement of facts of this complaint is as stated below:

The complainant had purchased a 3 G Samsung Mobile phone from the opposite party on 22.06.2019 for Rs.7,990/-.  But within a month of the date of purchase of the mobile phone the phone’s display got damaged and the phone became non-functional.  When the complainant went to the opposite parties’ shop with this mobile phone, the employees of the opposite party misbehaved with the complainant and informed that they are not responsible for the said damage and had advised to contact the company authorities.  Hence the complainant approached the service centre of the Samsung India Pvt. Ltd. at Palarivattom (2^nd opposite party) and reported the complaint.  Then the service centre personnel said that the phone may fall from the complainant’s hand and had broken and physical damages will not be covered under warranty.  The service centre personnel asked the complainant Rs.3000/- to repair the phone.  The complainant says that the phone did not fall from his hand and was kept in safe place with a cover.  The complainant says that the phone did not get a single scratch from his hand.  The opposite parties have considered the damage of the phone as a default from the part of the complainant.  The opposite parties behaved as the complainant had shown falsehood and this caused very much mental agony to the complainant.

Hence the complainant approached before this Commission to redress his grievance, seeking orders directing the opposite parties to refund the value of the mobile phone Rs.7,990/- along with a compensation of Rs.5,000/- plus cost of the litigation Rs.8,000/-.

2. Notice

When the case was taken on file notice was issued to the opposite parties from this Commission on 28.03.2020.

Upon notice from this Commission, the 1^st and 2^nd opposite parties appeared before the Commission.  The 2^nd opposite parties filed vakalath and version on 13.08.2020.  The 2^nd opposite party also produced the copy of the order of the Hon’ble Supreme Court of India, Record of proceedings in Suo Moto Writ petition (Civil) No. (S)3/2020 dated 23.03.2020 for accepting the version of the 2^nd opposite party.

The 1^st opposite party not filed version within the statutory period of 30 days.  Hence the 1^st opposite party is set as ex-parte.  After making opposite party No.1 as ex-parte in the proceedings, the 1^st opposite party filed their version on 30.01.2021. 

On verification of the date of filing of the version of the opposite party with respect to the above mentioned order of the Hon’ble Supreme Court of India dated 23.03.2020 and as per the order of the Hon’ble Supreme Court of India in Miscellaneous application No.21 of 2022,

in

Miscellaneous application No.665 of 2021

in

Suomoto writ petition (C) No.3 2020 in

Re. cognizance for extension of limitation with Miscellaneous application No.29 of 2022

in

Miscellaneous application No.665 of 2021

in

Suomoto petition C No.(3) of 2020 dated Jan10/2020

Opposite party 1 is also eligible for relaxation of time limit to file their version.  The 1^st opposite party filed their version on 30.01.2021.  Hence proceedings dated 15.12.2020 making ‘opposite party 1 as exparte’ is Suo Moto corrected and the version filed by the opposite party 1 is accepted on file as per the above said judgment of the Hon’ble Supreme Court of India.

3. Version of the 1^st opposite party.

     It is admitted that the complainant had purchased the said mobile phone from the 1^st opposite party on 22.06.2019.  But the complainant did not come to the shop and give any complaint about the phone either directly or through other means.

     The 1^st opposite party denies each and every statement or contention which is stated in paragraph 1 of the complaint.  The 1^st opposite party acted as per the law.  As a dealer, there is no negligence or deficiency in service or unfair trade practice occurred from the side of the opposite party towards the complainant.  The complainant had chosen the brand of his choice on his own accord after understanding its functionality, warranty terms and conditions etc.  The complainant does not mention any manufacturing defect of the phone in the complaint.  The opposite party is not liable to give compensation as demanded by the complainant.  The complainant is not entitled to receive any compensation from the 1^st opposite party.  The mobile phone of the complainant was damaged due to the careless use of the complainant.  There is no deficiency of service from the part of the 1^st opposite party.

4. Version of the 2^nd opposite party

The 2^nd opposite party denies each and every statement or contention which is stated in the complaint.  The present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed.  In the Samsung mobile set 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 and any other reasons also which could be rectified and that is why the Consumer Protection act contemplates expert opinion when the defect is not visible.  When the complainant raised complainant the service engineer inspected the said mobile set and found display damages in the mobile set which happened due to failure on the part of the complainant to take proper care of the set thus the detective parts of the set was required to be replaced.  The same was informed to the complainant that the defects arose in the mobile set was due to mishandling and physical damage, defective parts shall be replaced on chargeable basis which was denied by the complainant.  That there was no manufacturing defects in the mobile set and the defects in the said mobile set had happened due to mishandling and physical damages done to the mobile set.  Therefore, refund replacement or repair free of cost, in case of mishandling, outside warranty period or physical damages were not included in the warranty terms and conditions of the said mobile set.

The Hon’ble Supreme Court of India in the case N.Anantharaman Vs.Fiat India Ltd. and Other AIR 2011 SC 523 (2011) I SCS 460 held that when there is no major on inherent manufacturing defect in vehicle and the problem complained to has been removed, manufacturing company or agent is not under the compulsion to replace the same.

The complainant has suppressed material facts, facts which only shows that there were no manufacturing defects to the handset within the warranty period and defects found in the set happened due to physical damages and mishandling to the set.

The opposite parties acted as per the terms and conditions of the warranty and in compliance of law.  The opposite party No. 2 shall not be liable to pay compensation as there was no manufacturing defects found in the said mobile set.  There is no deficiency in service or negligence on the part of the opposite party 2 or their official.

5. Evidence

Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidence filed by the complainant which was marked as Exbt.A1.

On 12.09.2022 the complainant has filed a petition for appointing an Expert Commissioner to inspect the defects of the mobile phone.  Heard.  The 2^nd opposite party’s counsel has no objection in allowing the I.A. Hence I.A.333/2022 filed by the complainant is allowed.  Sri.Anilkumar K V, Trade Inspector in Electronics Engineering, Women’s Polytechnic College, Kalamassery is appointed as Expert and the Expert Commission had filed the report on 30.09.2022.  The Expert Report is marked as ‘C1’ .  The 2^nd opposite party not filed any objection on the Expert Commissioner’s Report.

The 2^nd opposite party not filed documents.  But on verification of the version filed by the opposite party 2, the 2^nd opposite party filed two documents along with the version which are seen ‘not marked’.

Document No.1  Power of Attorney of the Authorized Signatory from Samsung India Electronics Pvt. Ltd.

Document No.2     A copy of the warranty terms and conditions.

Heard both parties.

6. The issues taken for consideration in this case are as follows.

1. Whether the complainant is a ‘consumer’ as defined under Section 2 (1) (d) of the Consumer Protection Act 1986?

2. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite parties towards the complainant?

3. If so, reliefs and costs?

7. Issue Nos. (1), (2) and (3)

For the sake of convenience we have considered issue Nos.(1), (2) and (3) together.

The complainant has stated in the complaint that he had purchased the said mobile phone in the name of his wife.  As per Exbt.A1, Sini Selmon had purchased a 105 Galaxy A10 2GB 32GB BLUE :SAMSUNG MOBILE from the opposite party for Rs.7999/- including CGST and SGST on 22.06.2019.  Hence the complainant is a consumer of the opposite party.

The case of the complainant is that within a short span of its purchase (on 02.07.2019) the display of the phone became damaged and the opposite parties’ service centre personnel had inspected the mobile phone and said that  the damages and the defective parts of the set was required to be replaced under chargeable basis only.

The 2^nd opposite party in their version also states that the damages in the mobile phone are found display damages which happened only due to the mishandling of the complainant and the defective parts shall be replaced on chargeable basis only.

We have examined the Expert Report ‘C’ also.  The Expert Commissioner has reported the following points:

1. The phone was found to be charged but the display of the mobile phone was found dim with lines.
2. The system could not be seen to ‘turn on’ when the phones power switch is turned on.
3. Physical examination of the mobile phone showed no signs of any kind of scratch on the mobile phone.

Considering all the facts of the case, version filed by the 2^nd opposite party, evidence filed from both sides, the Commission is of the considered view that the opposite parties had committed negligence or deficiency in service towards the complainant.  At the time of hearing on the matter, the complainant had produced the alleged defective mobile phone also.

As per the Commission report, it is reported that the phone is having some display problems. The 2^nd opposite party argued that it is not reported by the Expert that the phone is having any manufacturing defect.  The Commission observed that though it is not specifically recorded in the C1 report that the phone is having some manufacturing defect, it is assumed that the phone is having some manufacturing defect as per the above (a), (b), and (c) points reported by the Expert Commissioner.  Hence the stand  taken by the 2^nd opposite party to repair the defective parts of the mobile phone only under chargeable basis is not tenable.  The phone was damaged within a few days after the date of purchase of the phone.  The opposite parties were not ready to repair the mobile phone free of cost or to refund the money to the complainant on the grounds of physical damage.  Since the phone is damaged within the warranty period, the opposite parties are liable to refund the amount to the complainant.  The complainant states that the phone was kept in a safe place with a cover and there was no chance for a single scratch from his hand.  The Expert report also specifically stated that there is no signs of any kind of scratch on the mobile phone.

Based on the above observations made by the Commission, issue Nos.(1), (2) and (3) are found in favour of the complainant and the following orders are hereby passed.

1. The opposite parties shall refund Rs.7,990/- (Rupees Seven Thousand Nine hundred and Ninety) to the complainant as per Exbt.’A1’ invoice and ‘C1’ Commission Report.
2. The opposite parties shall also pay compensation of Rs.5,000/- (Rupees Five thousand) to the complainant.
3. The opposite parties shall pay Rs.5,000/- (Rupees Five thousand) as cost of the proceedings to the complainant.
4. The liability of the opposite parties shall be jointly and severally.

The above order shall be complied with by the opposite parties within 30 days from the date of receipt of a copy of this order.  If the above order is not complied within 30 days, the amount ordered as (1) and (2) above shall attract interest @9% per annum from the date of order till the date of realization.    

  Pronounced in the open commission on this 19^th day of February 2024.

Sd/-

                                                                   Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

Sd/-

                                                                   V.Ramachandran, Member

Forwarded/by Order

Assistant Registrar

uk

Date of Despatch        :: By Hand:            By post

APPENDIX

Complainant’s evidence

Opposite party’s evidence : Nil

Date of Despatch        :: By Hand:            By post