Kerala

Idukki

CC/160/2021

K V Chacko - Complainant(s)

Versus

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

24 Jul 2023

ORDER

DATE OF FILING : 12/11/2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 24^th day of July 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.160/2021

Between

Complainant                                :  K.V.Chacko, S/o Varkey,

                                                        Kudakallumkal House,

                                                        Velliyamattom P.O., Thodupuzha,

                                                         Idukki District, Pin – 685 588.

                                                           (By Adv.Santhosh B.Nair)

                                                   And

Opposite Parties:                      : 1 . M/s Samsung India Electronics Private Limited,  

                                                         6^th Floor, DLF Centre, Sansad Marg,

                                                         New Delhi – 110 001.

                                                         (By Adv.Lissy M.M.)

                                                    2 . M/s Samsung Authorised Service Centre,

                                                         Temple Road, Near K.P.Varkey Jewllers,

                                                         Thodupuzha, Idukki District, Pin – 685 584.

                                                    3 . M/s Savex Technologies Privated Limited,

                                                         New No.5 & 5/1, 1^st Floor, Montieth Lane,   

                                                         Egmore, Chennai – 600 008, Tamil Nadu.

 

O R D E R

SRI.AMPADY K.S., MEMBER

This complaint is filed under S.35 of Consumer Protection Act, 2019. Main allegations raised by complainant against opposite parties are discussed hereunder:-.

1 . The complainant is a senior citizen and a retired Deputy Development Commissioner from The Rural Development Department of Kerala State.

(Cont....2)

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2 . On 17/10/2020 the complainant purchased a Mobile Phone, manufactured by the 1^st opposite party branded as Samsung Galaxy model as 520+paying Rs.49,999/- (Rupees Forty Nine Thousand Nine Hundred and Ninety Nine only) using the online facility provided by the 1^st opposite party.  The 1^st opposite party sent the above said product through the 3^rd opposite party.

3 . After purchasing the mobile phone the complainant gone through the specifications and instructions of the 1^st opposite party supplied to the complainant along with the mobile phone.  Thereafter the complainant was using the mobile phone as per the specifications and instructions of the 1^st opposite party.

4 . Complainant had used smart mobile phones such as Nokia, Samsung etc. for the last two decades.

5 . On 01/09/2021, on the screen of the said mobile phone a vertical green line seen, immediately the complainant approached the 2^nd opposite party, the authorised service centre of the 1^st opposite party.

6 . After checking the mobile phone, 2^nd opposite party told the complainant that it is due to the defective display of the mobile phone. The 2^nd opposite party assured that it can be rectified by repairing the same.  The 2^nd opposite party demanded an amount of Rs.18,500/- (Rupees Eighteen Thousand and Five Hundred only)  for the repairment.

 

(Cont....3)

 

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7 . 1^st opposite party has supplied a warranty card along with the mobile phone to the complainant while purchasing the said mobile phone.  The company has offered warranty of one year for the said product.  The company promised and assured replacement/repairment of the product free of cost during the warranty period.  So the complainant has shown the warranty card issued by the 1^st opposite party and demanded to rectify the defect free of cost.  But the 2^nd opposite party was not amenable for the same.

8 . The complainant purchased the mobile phone from the 1^st opposite party on 17/10/2020 and the defectiveness in the display seen on 01/09/2021 which is within the warranty period and the 2^nd opposite party is liable to  repair the mobile phone free of cost.  Further if the defectiveness is not repairable as per the warranty the 1^st opposite party is liable to replace the mobile phone.

9 . Since the 2^nd opposite party was not amenable to repair the mobile phone free of cost and as an authorised service centre, who is liable to take appropriate steps by intimating the same to the 1^st opposite party and to replace the mobile phone, the complainant sent a registered notice to the 2^nd opposite party demanding the same.  The 2^nd opposite party accepted the notice on 06/09/2021.  The 2^nd opposite party did not give reply so far.

10 . The 1^st opposite party bound to provide service as per the warranty conditions.  The 2^nd opposite party as an authorised service centre of the 1^st opposite party are also liable to extent their service in terms of the warranty

 

(Cont....4)

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conditions.  The 2^nd opposite party have no right to demand charge for repairing the phone during the period of warranty.  The unfair trade practice of the 1^st and 2^nd opposite parties and the denial of free service and replacement of the phone during the warranty period are deficiency of service on the part of the 1^st and 2^nd opposite parties.

11 . The approach of the 2^nd opposite party in redressing his grievance was not prompt and positive.  This has caused much mental agony to the complainant.  Hence the opposite parties are liable to pay an amount of Rs.25,000/- as compensation to the complainant for the loss of time, physical and mental strain and mental agony caused to the complainant.

12 . The opposite parties are liable to pay an amount of Rs.25,000/- as compensation to the complainant for the deficiency of service on the part of the opposite parties.

Hence complainant prayed for the following reliefs.

1 . Direct the 1^st opposite party to replace the Samsung G520+sold to the complainant on 17/10/2020 with a new one, or

2 . Direct the 2^nd opposite party to repair the Samsung G520+mobile phone free of cost, or

3 . Direct the 1^st opposite party to refund Rs.49,999/-, the price of Samsung G520+mobile collected from the complainant, and

4 . Direct the 1^st and 2^nd opposite parties to pay an amount of Rs.25,000/- as compensation to the complainant for the deficiency of service on the part of the opposite parties, and

(Cont....5)

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5 .  Direct the 1^st and 2^nd opposite parties to pay an amount of Rs.25,000/- as compensation to the complainant for the loss of time, physical and mental strain and mental agony caused to the complainant, and

6 . Direct the 1^st and 2^nd opposite parties to pay cost of this proceedings to the complainant, and

7 . This Hon’ble Forum may be pleased to grant such other relief as this Hon’ble Forum deems fit.

1^st opposite party filed preliminary objection and written version raising the following contentions.

1 . That the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed.  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 visible.  The complainant alleged that he raised a complaint regarding display issues in the handset, and that the service centre shared an estimation charges for the repair of the said set which are hereby denied by the answering opposite parties.  Complainant never approached the service centre for any defects in the said handset nor any repair history is found in the answering opposite party system.  Defects alleged by the complainant needs to be inspected by the service engineer to

 

(Cont....6)

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conclude the manufacturing defects in the set.  That the damages in set if occurs due to physical damages and mishandling done by the complainant, in that scenario refund, replacement of the set were not included in the warranty terms and condition of the said set.  The Hon’ble Supreme Court of India in the case C.N.Anantharam V/s. Fiat india Ltd.,& Ors., AIR 2011 SC 523,(2011)1 SCC 460, held that when there is no major or inherent manufacturing defect in vehicle and the problem complained of has been removed, manufacturing company or agent is not under the compulsion to replace the same.

2 . It is humbly submitted that this Hon’ble 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, 2019.

3 . That the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering opposite parties.  In M.J.Abraham V/s. Angel Agencies & Ors., III(2000) CPJ 544, it has been held by the Commission that for replacement of product the defect must be manufacturing defect and for proving manufacturing defects expert opinion is essential.  Further in Classic Automobiles V/s Lila Nand Mishra & Anr., (I (2010) CPJ 235 (NC) it has been held that the onus to prove the manufacturing defect was on the complainant and further, it was necessary to obtain expert opinion before saying that there was manufacturing defects.

 

(Cont....7)

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4 . There were no manufacturing defects or any defects in the handset at the time of sale and that no such defects arose due to the manufacturing defects.  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.  The opposite parties have acted as per the terms and conditions of warranty and in compliance with law.  Therefore, as per Sec.2(11) of Consumer Protection Act these cannot be termed as deficiency in service.

5 . Further in Bharathi Knitting v/s.D.H.L. Worldwide, (1996) 4 SCC 704, the Hon’ble Supreme Court held that in case of specific term in the contract, the parties shall be bound by the terms of the contract.

6 . 1^st opposite party is willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual.  It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of opposite parties 1and 2, nor did they indulge into unfair trade practice, therefore 1^st opposite party is not liable to refund/replace/provide compensation for the said handset as the complainant never visited or contacted the service centre for the alleged defects in the set.  A copy of warranty terms and conditions is annexed herewith.

7 . 1^st opposite party is not liable to provide repair/replacement/refund or compensation.

 

(Cont....8)

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8 . The complainant claimed repair/refund or replacement of the handset along with Rs.50,000/- as compensation which is inappropriate and should be dismissed.

9 . 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.

10 . The contents of the preliminary objections and the facts of the case shall be treated as the part and parcel of in response to the respective paragraph and anything contrary thereto or inconsistent there with are wrong and denied.

11 . The contents of para 1 regarding the occupation of the complainant are not known to the answering opposite party, thus left unanswered, the complainant should provide strict proof regarding the same.

12 . The contents of para 2 and 3 of the complaint regarding purchase details are all matters of record and does not require any specific traversing.  The complainant never approached the service centre for any defects in the said set and regarding the development of problem in the handset, the answering opposite party refers to the preliminary objections mentioned above.  Complainant may also be directed by the Hon’ble Commission to produce expert evidence.

13 . The contents of para 4 are not known to the answering opposite party, thus left unanswered.

 

(Cont....9)

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14 . The contents of para 5 to 8 regarding the averments of the complainant regarding functioning of the handset, repair etc., which are denied and disputed and that the complainant never approached the service centre to diagnose the alleged defects in the set nor any repair amount was quoted by the service centre for its repair, the complainant may be put to strict proof of any contrary contention.  As to contents regarding deficient service from opposite party side, the same are denied.  The opposite parties did not commit any deficiency in service to the  complainant and is not responsible for any such deficiency in service or unfair trade practices.  All communications by the complainant to the answering opposite party company – the same was handled as per company rules and regulations and the complainant was informed the warranty terms and conditions in detail and hence anything contrary is denied and disputed.

15  .The contents of para 9 doesn’t concern the answering opposite party.

16 . The contents of para 10 and 11 are denied.  That the complainant never approached the service centre to diagnose the alleged defects in the set.  That the contention of the complainant for unfair trade practices and harassment are denied in full and the action of the opposite parties were in accordance with the warranty terms and conditions.

17 . The contents of para 12 are denied.  That the answering opposite parties or their agents, dealers, service centre has not committed any

(Cont....10)

 

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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.

18 . The contents of para 13 are denied.  That no cause of action ever arose against the answering opposite parties.

19 . The opposite party shall not be liable to pay compensations as the set was never diagnosed  by the service centre nor the complainant approached the service centre to diagnose the alleged defects in the set.  And therefore, under the terms and conditions of the warranty of said handset it was not mentioned that replacement/refund/compensation would be provided in case no defects, out of warranty period, physical damages or mishandling of the same or when the opposite party is not approached for the defects in the set.

20 . No cause of action ever arose against 1^st opposite party.  There is no deficiency of service or negligence on the part of the 1^st opposite party or their officials, agents.

So, it prayed for dismissal of complaint with exemplary cost.

After filing of complaint, complainant has not appeared or was represented.  No application was also filed.  Though notice was served on opposite parties 2 and 3, they have not appeared, nor filed written version.  As complainant is not vigilant in prosecuting the matter, we are constrained to dispose of this complaint on merits based on available record.  Copy of 4 documents  produced by complainant which were marked as Exts.P1 to P4 are as follows.

(Cont....11)

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1 . Ext.P1 – Invoice No.CHIMP 2021155515 dated 17/10/2020 for Rs.49,999/-.

2 . Ext.P2 – Warranty Card.

3 . Ext.P3 -Registered complaint sent to 2^nd opposite party with postal receipt.

4 . Ext.P4 - Acknowledgement card addressed to 2^nd opposite party.

Though 1^st opposite party stated in written version that copy of power of attorney and warranty conditions were submitted along with it, no such documents are seen filed.  As complainant was not represented, heard counsel for 1^st opposite party.

We have considered the pleadings on both sides and documents produced by complainant.  On a perusal of the same, following points arise for consideration.

1 . Whether this Commission has jurisdiction to entertain this complaint and that whether complaint is bad for non- joinder or mis-joinder of parties?

2  . Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?

3 . If so, for what reliefs, complainant is entitled to?

4 . Order to be passed?

 

 

(Cont....12)

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Point No.1

The contention of opposite parties regarding the above is unsustainable.  1^st opposite party has not pointed out the ground on which this Commission has no jurisdiction to try this complaint.  On a perusal of definition of “consumer dispute” mentioned in Section 2(8) of Consumer Protection Act, 2019, where the person against whom a complaint has been made, denies or dispute the allegations contained in the complaint is a consumer dispute. In the case purchase of mobile phone like the one mentioned in this complaint, manufacturer, seller as well as authorised service provider are all necessary parties.   1^st opposite party failed to point out the reason for raising such a contention.  Hence, we find that this Commission has jurisdiction to entertain and try this complaint and there is no non-joinder or mis-joinder of necessary parties.  Point No.1 is answered as above.

Point Nos.2 and 3 are considered together

Perusal of the allegations in the complaint reveal that complainant raised the complaint for not repairing the mobile phone free of cost by the service centre.  His case is that defect in mobile phone noticed within the warranty period of one year and he approached authorised service  centre of 1^st opposite party.   As 2^nd opposite party service centre is not willing to repair the mobile phone free of cost, he has sent a Registered Complaint dated 04/09/2021 to them ie, within 4 days from the date of noticing the

 

(Cont....13)

 

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defect on 01/09/2021.  It is seen that he has sent the above complaint to 2^nd opposite party stating the complaint of the phone and also informed them that they told him that the service will cost Rs.18,500/- which will have to be borne by the complainant.  He requested them to replace the product immediately.  Though notice sent from this Commission was served on 2^nd opposite party, they have not responded.  There is no evidence on record to show that they have sent reply to the notice sent by complainant.  1^st opposite party cannot say that no service report is entered in their computer system and therefore they are not liable for any deficiency in service.  It is the duty  of service centre (2^nd opposite party) to generate service report and enter in the online computer system of manufacturer.  Normally such a report is generated only when a service is effected.  Here no such service is seen effected in the light of averments contained in the complaint.  Complainant’s grievance is that the  phone became defective during the warranty period he is entitled to get it repaired or to get it replaced or in the alternative to get refund of Rs.49,999/- being the price of the phone.  Once warranty is issued for a product, manufacturer is duty bound to rectify the defect properly and to the satisfaction of the customer (Consumer).  To effect such repairs every company appoints authorised service centres.  Being an agent of the manufacturer, 2^nd opposite party service centre is also under a legal obligation

 

 

 

(Cont....14)

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to rectify the defect free of cost during the warranty period.  Every manufacturer fixes the price of product after considering the probability of repair and replacement of parts if any. The averments of the complainant regarding his approach to 2^nd opposite party for rectification of defect can only be accepted in the light of no response from 2^nd opposite party to the notice of this Commission and also the registered notice sent by complainant to them.  1^st opposite party has not rebutted the allegations of complainant.  1^st opposite party has admitted in above para 6 of the written version that they are willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual.  1^st  opposite party cannot approbate and reprobate.  Considering the cost of the phone as well as fact and circumstance of the case we are of the considered view that there is deficiency in service on the part of 2^nd opposite party for the reason that they have informed the complainant to pay service cost of Rs.18,500/- during the warranty period.  2^nd opposite party being an agent and authorised service centre of 1^st opposite party.  1^st and 2^nd opposite parties are jointly and severally liable to rectify the defect free of cost as the product was within warranty period.  Complainant or Counsel failed to attend before this Commission for effectively conducting the case.  The product in question is not produced before us.  However, there is no dispute with regard to the sale of  the  product  to  complainant  and  the  price   thereof.  We   find   that

 

(Cont....15)

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complainant is entitled to get repaired his mobile phone free from defect pointed out.  On a totality of facts, we find it just and proper to give a direction to 1^st and  2^nd opposite parties to repair the mobile phone in question free of cost if the complainant produces the same before authorised service centre (2^nd opposite party) within 15 days of receipt of this order.  1^st opposite party  is directed to give necessary instruction to 2^nd opposite party for conducting the repairs and replacement of parts if any necessary for restoring the mobile phone in original condition.  This direction is given only with regard to the defect alleged by the complainant in the present complaint.  1^st and 2^nd opposite parties shall ensure that the product after repair shall be free from such defects. Needless to say the inconvenience caused to the complainant by acts of opposite parties is also to be compensated.  Complainant has sought for Rs.50,000/- (Rs.25,000+Rs.25,000/-) as compensation.  Considering the circumstances, we are of the view that Rs.20,000/- is to be granted as compensation, along with Rs.2,000/- towards litigation costs. Point Nos.2 and 3 are answered accordingly.

Point No.4

In the light of above discussions and our findings on point Nos.2 and 3, we order that:-

1 .  2^nd opposite party shall carry out necessary repairs or replacement of the parts free of cost in respect of defects alleged in this complaint within 30 days of receipt of the mobile phone, if the complainant produces the

 

(Cont....16)

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mobile set in question before 2^nd opposite party within 15 days of receipt of this order.  1^st opposite party should give necessary direction to 2^nd opposite party in this regard.  Needless to say the repair or replacement of defective parts shall be free from all defects pointed out in this complaint.

2 . 1^st and 2^nd opposite parties shall pay Rs.20,000/- as compensation to complainant with 12% interest from 04/09/2021 (date of Ext.P3) until realisation.

3 . 1^st and 2^nd opposite parties shall pay litigation costs of Rs.2,000/- each to complainant.

If the above directions are not complied with by opposite parties, within 45 days of receipt of a copy of this order complainant will be entitled to execute the same as prescribed by law.

In the result complaint is allowed in part as stated above.

Parties shall take back extra copies without delay.

Pronounced by this Commission on this the 24^th  day of July 2023.

 

                                                                                                Sd/-

                                                                            SRI.AMPADY K.S., MEMBER

                                                                                           Sd/-

                                                                 SRI.C.SURESHKUMAR, PRESIDENT 

                                                                                            Sd/-

                                                                        SMT.ASAMOL P., MEMBER

 

 

 

 

(Cont....17)

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APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 – Invoice No.CHIMP 2021155515 dated 17/10/2020 for Rs.49,999/-

Ext.P2 – Warranty Card

Ext.P3 -Registered complaint sent to 2^nd opposite party with postal receipt.

Ext.P4 - Acknowledgement card addressed to 2^nd opposite party.

On the side of the Opposite Party :

Nil               

                                                                                            Forwarded by Order

 

                                                                                        ASSISTANT REGISTRAR