Punjab

Ludhiana

CC/19/434

Mrs.Jyoti Singh Behl - Complainant(s)

Versus

M/s Samsung India Pvt.Ltd - Opp.Party(s)

Harjot Singh Adv.

04 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 434 dated 11.09.2019.                                                        Date of decision: 04.10.2023.

Mrs. Jyoti Singh Behl aged 45 years, wife of Anand Behl, Resident of Flat No.3F/3^rd Floor, Abad Chancellor, SeaPort Airport Road, Near Cardinal School, Thirkkakara Post Office, Thrikkakara North (Part), Emakulam, Kerala 682021, and present resident of B4/7^th Floor, Crosswinds Luxury Homes, Guru Amardas Nagar, Ludhiana,141001.                                                                                                                                                                            ..…Complainant

                                                Versus

1. M/s. Samsung India Pvt. Ltd. having its registered office at 6^th Floor, DLF Centre, Sansad Marg, New Delhi, 110001 and having head office at 20^th-24^th Floor, Two Horizon Centre, Gold Course Road, Sector-43, DLF Ph-V, Gurugram, Haryana 122202, India through its Directors/Authorized Person.
2. M/s. Sukanya Mobiles, SCF 28F Block Market, BRS Nagar, Ludhiana-141001, India                                                                                                                                                             …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sidharth Chandi, Advocate.

For OPs                          :         Sh. Govind Puri, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

 

1.                Shorn of unnecessary details, the facts of the complaint are that on 27.07.2019,  the complainant purchased one Samsung S-10 Plus mobile phone marketed by opposite party No.2 bearing product No.SM-G975FZWDINS from opposite party No.2 vide invoice No.TI/339. The complainant claimed to have experienced poor performance of the device from the next day of its usage as it started freezing without getting or making any calls. On persistence of the problem, she approached opposite party No.2 who informed the complainant about having replacement of device or a refund policy in case she is not happy with the quality of the product. However, on asking, the authorized service centre personnel of opposite party No.2 told opposite party No.1 that no refund or replacement will be offered and only repairs are allowed on the device.  Thereafter, the complainant approached service center of opposite party No.1, who took the phone for servicing with assurance to give solution in 2 days time. The complainant left the device at the center and only few minutes she received a call to collect the device as the handset has been rectified. When the complainant asked about the defect, then she was verbally told that they have rebooted the phone. Thereby implying the problem will still persist. The complainant refused to take back the phone and asked for refund the full amount as per policy of opposite party No.1 but instead of refunding the money, the authorized representative of opposite party No.1 compelled the complainant to take back her phone. The complainant sent message on website of opposite party No.1 for redressal of her grievance which was duly replied. The complainant further sent an email to respondent No.1 but to no avail. The complainant further stated that as per the return policy of opposite party No.1 the customer is entitled for compete refund within 15 days. As such, she is entitled for compete return and refund of the device but due to denial on the part of the opposite parties, she has suffered financial loss, mental agony which amounts to deficiency in service on the part of the opposite parties for which she is entitled to compensation. In the end, the complainant prayed for issuing direction to the opposite parties to refund Rs.73,900/- along with compensation of Rs.50,000/- and litigation expenses of Rs.25,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; the complaint is an abuse of process of law;  lack of cause of action etc. The opposite parties stated that the handset in question was submitted by the complainant with service centre on 02.08.2019 with reported problem of “No sound from receiver & MIC while calling, Freeze while use” and the authorized service centre retained the handset for checking and issued the job sheet dated 02.08.2019. On inspection of handset by service engineer in safe mode no such defect/problem of “No sound from receiver & MIC while calling, Freeze while use” was detected and handset was perfectly working. The service engineer updated the software of the handset and kept the same under observation for 8 hours but no such defect occurred and handset was perfectly working. After thoroughly checking the handset, the complainant was called upon to take the delivery of the same but she did not turn up to take back the handset despite various reminders given by the service centre and kept on insisting for refund of price. The opposite parties stated that no such assurance to replace the hand set or refund price was given by them as their obligation under warranty is subject to the warranty terms and conditions as mentioned in warranty card supplied with the product. Moreover, the performance of the handset depends upon the physical handling of the product. The complainant has not set out any legitimate ground entitling her for replacement of handset with damages and litigation costs. She has neither alleged any specific irreparable defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of independent expert and qualified person of central approved laboratories in support of her submission.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties stated that their return policy is very clear and complainant’s handset does not fall within the purview of the refund policy. Moreover, the refund is given if there is any major part failure or any other hardware defect occurs in the handset within 15 days of purchase. However, there is no defect in the handset and same is perfectly working and is lying at service centre and the complainant is deliberately not taking back the handset. The opposite parties are only liable to repair the product in question as per warranty terms and conditions.  The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of invoice dated 27.07.2019, Ex. C2 is the copy of service request dated 02.08.2019, Ex. C3 to Ex. C5 are the copies of email correspondence and closed the evidence.

4.                On the other hand, the counsel for the opposite parties tendered affidavit Ex. RA of Sh. Rajiv Gupta, Director-CS Customer Experience of the opposite parties and submitted documents Ex. R1 is the copy of service request dated 02.08.2019 and technical report 19.08.2019, Ex. R2 is the copy of warranty ward, Ex. R3 is the copy of email and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and affidavit produced on record by both the parties.

6.                The complainant, a purchaser of new Samsung S-10 Plus phone (hereinafter called a product), started experiencing hiccups in the functioning of the product. On the 4^th day of its purchase, the matter was orally brought into notice of opposite party No.2, the product seller. The complainant was pressing her claim for the return of mobile phone and sought full refund of the product while the opposite parties were not inclined to accede to the request of the complainant as there is no such refund policy. The phone was deposited with the authorized service centre of the opposite parties on 02.08.2019 vide receipt Ex. C2 =Ex. R1. As per technical report dated 19.08.2019 Ex. R1, there is no defect found in the product. Admittedly, there is a series of exchange of emails between the complainant and the opposite parties and the complainant has insisted for full refund of the amount claiming that there is a policy of the company to refund the amount within 15 days from its purchase.

7.                In order to examine the issue with regard to refund of the amount, the warranty card ex. R2 was examined and there is no recital with regard to refund of the amount within 15 days. In the letter addressed to the complainant Ex. R3, it has been specifically conveyed to the complainant that unless the product has some technical fault, it will not be possible either to replace/repair or provide any refund. It is mentioned therein as long as product has any fault, it is always open to repair as per Samsung Warranty Policy.

8.                However, clause VIII of Section 2(47) of the Consumer Protection Act, 2019 stipulates the circumstances where a trader or service provider are bound to consider for refund which reads as under:-

“If a trader or service provider refuses to withdraw the Defective goods or to withdraw or discontinue deficient services and refuses to refund the amount paid by the consumer for such defective goods or deficient service, then such trader or service provider is said to adopt “unfair trade practice”. The trader or service provider shall refund the money as he had stipulated in the bill or cash memo or in the absence of such stipulation or cash memo, then he is to refund within 30 days.”

It was for the complainant to prove that the product is technically defective or it is defective beyond repair. The claim was required to be backed up by the opinion of a technical expert. Mere assertion without supported by any cogent evidence, does not discharge initial onus of proof of the complainant. On the other hand, the opposite parties have produced a technical report in the evidence which confirms that the product is not defective.

9.                During the course of arguments, the mater was referred to Lok Adalat. The opposite parties had produced the product in question along with a technical report and the phone was found to be functional even after elapse of about more than 4 years from the date of its purchase. Since the phone is in operational and is not defective. So VIII Clause of Section 2(47) of the Consumer Protection Act, 2019 cannot be invoked and there is no unfair trade practice or deficiency in service on the part of the opposite parties. Even otherwise, the initial burden to the defect in the product was on the complainant, which she has failed to prove.

10.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:04.10.2023.

Gobind Ram.