D.O.F:29/07/2019
D.O.O:20/02/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.No.153/2019
Dated this, the 20th day of February 2023
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Abhishek Mulleria, aged 22 years
S/o. Seetharam Bhat,
Balakka House, : Complainant
Karadka Village, Mulleria Post,
Kasaragod Taluk
And
- M/s. Savex Technologies Private Ltd,
Kasabahobli, Anekal Taluk,
Bangaluru Urban District,
Bangalore, Karnataka State- 562 107
- Proprietor
Malabar Communications,
KMC- VI-878,879, Golder Arcade,: Opposite Parties
Kasaragod- 671 121
- The General Manager
Samsung India Electronics Private Ltd,
20-24 Floor, Two Horizon Centre,
Goly Course Road, Sector-43,
Gurugon, Hariyana- 122 202
(Advs. C.V.Narayanan &Annamma John.V for OP.3)
ORDER
SRI.RADHAKRISHNAN NAIR.M : MEMBER
The complaint is filed under section 12 of Consumer Protection Act.
The fact of the case is brief as follows:
The complainant purchased a Samsung Galaxy Pro mobile hand set bearing model SM:G600 FZDEINS serial 71RZSK7162 BFT and as per IME No.359932079155876 form the Opposite Party No.1 through online, for Rs. 6,990/- on 30.07.2018. The purchase was through his brother Bharath. B. and hence the purchase bill stands in his name. Right from the beginning the mobile set was defective and complainant faced several unusual problems. The home button of the mobile phone became inactive and after that the mother board has repeatedly crashed. The complainant could not insert his OTG and operate the flash light at the same point of time as it was assured in the website at the time of purchase. The mobile phone was taken to Opposite Party No.2, the authorised service centre, on various occasions dated: 26.03.2019, 30.03.2019, 16.04.2019,15.05.2019,25.01.2019 for servicing. But the defects could not be cured. At the time of each service Opposite Party No.2 told that he had changed the mother board and cured the defects. Even after the replacement of the mother board the issues could not be solved. Complainant submits that there is manufacturing defects in the mobile phone and the Opposite Party No.2 was very negligent in tendering service. The complainant submitted several complaints through e-mail to the Opposite Party relating to the technical defects in the mobile phone and requested for replacement. But the Opposite Parties had not responded positively. They failed to rectify defects in the mobile set. The complainant, who is an M.Sc. computer science student has suffered much due to the defects in the mobile phone. The mobile phone is consistently creating a lot of heat and failed to function. All the defects are caused during the warranty period. There is grievous deficiency in service and unfair trade practice on the part of Opposite Parties, due to which the complainant suffered monitory loss and several hardships. Hence this complaint is filed to direct the Opposite Parties to replace the above mobile phone set with a defect free new phone with all requirements and to pay Rs. 50,0000/- as compensation for mental agony and damages.
The notice sent to the opposite parties are duly served and the Opposite Parties No.1 and 3 entered appearance through their counsel who filed written version. The Opposite Party No.2 directly appeared in person and filed his version.
As per the version of the Opposite Parties No: 1& 3 the complaint is false, malicious and an abuse of process of law. It is submitted that the mobile handset was purchased by the brother of the complainant and it is used by him and not by the complainant. The disorder and malfunctioning occurred as alleged by the complainant was due to the wrong handling of the buyer and not by the complainant. The buyer is not comfortable with the mobile phones and to overcome the pitfalls the buyer has colluded with his educated brother and come with his false complaint. The mobile phone was used in contravention of user’s manual. The negligence and carelessness on the part of the user in making in proper use of mobile phone caused damage and it cannot amount to manufacturing defect. The warranty will be null and void,if the product is not used as per the service schedule described in the manual. The complainant has approached the Opposite Party No. 2 seven times with minor disorders on the handset and on each and every occasion those issues were settled and the complainant was convinced about the rectification. Even though he never produced his warranty card the Opposite Party No. 2 had done the job without the demanding any repair charge. Anyway, warranty does not cover replacement. The allegation of manufacturing defect in the phone is baseless. In the absence of any technical report manufacturing defects cannot be confirmed. There is no deficiency in service on the part of the service and the complaint deserves dismissal.
As per the version of Opposite Party No.2, it is submitted that the mobile phone produced by the complainant was duly serviced and returned back curing defects. The complaint was on motherboard and therefore it was changed. The service was done without taking any amount towards service charge. There is no service deficiency on the part of the Opposite Party No.2. Hence the complaint is liable to be dismissed.
The complainant filed proof affidavit in lieu of chief examination and the documents Ext.A1 to A8series are marked. He was cross examined as PW1. Ext.A1 is copy of purchase bill dated25.07.2018,Ext.A2 is the copy of the complaint submitted by complainant dated 23.05.2019, Ext.A3 is copy of reply dated 30.05.2019 sent by Opposite Party No.3, Ext.A4 is copy of acknowledgment of service request dated 26.03.2019, Ext.A5 is copy of acknowledgment of service request dated 30.03.2019, Ext.A6 is copy of acknowledgment of service request dated 16.04.2019,Ext.A7 is copy of acknowledgment of service request dated 15.05.2019, Ext.A8 is copy of acknowledgment of service request dated 21.05.2019 issued by Opposite Party No.2.
The Opposite Parties did not adduce any oral evidence but they produced certain documents, which are marked as Ext.B1 to B7. The Ext.B1 is warranty card, Ext.B2 is copy of purchase bill, Ext.B3 is acknowledgment of service requestdated17.10.2018, Ext.B4 is the acknowledgment of service requests dated17.10.2018, Ext.B5 is technical report dated 12.12.2018.Ext.B6 is QC results pass dated 15.05.2019.Ext.B7 is QC result pass dated15.05.2019.
Based on the pleadings of rival parties the following issues are framed for consideration.
- Whether there is any service deficiency or unfair trade practice on the part of the Opposite Parties?
- If so, what is the relief?
For convenience, both these issues are considered together.
The case of the complainant is that the mobile phone set sold by the opposite parties to him is defective and all the attempts to cure the defects by servicing, ended in vein. The mobile phone set is having some manufactural defect and hence the opposite party is liable to replace the same and to pay compensation to the complainant for mental agony and hardships suffered by him due to their service deficiency and unfair trade practice.
The opposite party submit that the mobile phone was used in contravention of user’s manual. The negligence and carelessness on the part of the user in making in proper use of mobile phone caused damage and it cannot amount to manufacturing defect. The warranty will be null and void, if the product is not used as per the service schedule described in the manual. The complainant has approached the Opposite Party No. 2 seven times with minor disorders on the handset and on each and every occasion those issues were settled and the complainant was convinced about the rectification. Even though he never produced his warranty card the Opposite Party No. 2 had done the job without the demanding any repair charge. Anyway, warranty does not cover replacement. The allegation of manufacturing defect in the phone is baseless. In the absence of any technical report manufacturing defects cannot be confirmed.
The complainant had taken steps to obtain an expert report on the defects of the mobile phone set by filing IA No.10/2021, which was allowed. But unfortunately the warrant was returned unexecuted from the LBS Engineering College, stating that they do not have the set up and equipment to inspect and note the defects of the software and hard ware of mobile phones.
So it is true that in the absence of such an expert report this commission is not in a position to conclude that there is manufactural defects in the mobile phone. But the facts remains that the mobile set is having certain defects and the services by way of repairing have not cured those defects. The oral evidence adduced by the complainant prove that aspects. There is no rebuttal evidence adduced by the opposite party to disbelieve the case of the complainant. The opposite parties argue that the negligence and carelessness on the part of the user caused damage mobile phone. But the opposite parties did not prove that aspect by leading evidence. At the same time they produce certain documents like Ext.B6 and B7,Test Reports, to show that there is no defects in the mobile phone set. The documents Ext.B6 and B7 are not proved by leading evidence. Those are only self-serving documents.
Considering the facts and circumstances in this case, this commission is of the view that, if at all, there is no conclusive evidence for manufacturing defects, there is some inherent defects which could not be cured by the opposite parties by changing certain parts namely, mother board etc. Hence this commission of the view that the product sold by the opposite parties is defective, due to which the complainant suffered hardships, apart from monitory loss. The opposite parties are jointly and severally liable to compensate for that.
The complainant prays to direct the opposite party to pay Rs.50,000/- towards compensation. But there is no evidence for such a huge amount of loss. The mobile phone set was purchased for Rs.6,990/-.In that circumstance this commission is of the view that a total amount of Rs.10,000/- will be a reasonable compensation in this case.
In the result the complaint is allowed in part and the opposite parties are jointly and severally directed to pay Rs.10,000/- (Rupees Ten Thousand only) as compensation along with Rs.5,000/- (Rupees Five Thousand only) as litigation cost to the complainant.
Time for compliance is 30 days from receipt of copy of this judgment.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibits
A1: Copy of purchase bill
A2: Copy of the complaint submitted by complainant dated 23.05.2019
A3: Copy of reply dated 30.05.2019 sent by Opposite Party No.3.
A4: Copy of acknowledgment of service request dated 26.03.2019
A5: Copy of acknowledgment of service request dated 30.03.2019
A6: Copy of acknowledgment of service request dated 16.04.2019
A7: Copy of acknowledgment of service request dated 15.05.2019
A8: Copy of acknowledgment of service request dated 21.05.2019
B1: Warranty card
B2: Acknowledgment of service request dated 26.03.2019
B3: Acknowledgment of service request dated17.10.2018
B4: Acknowledgment of service requests dated17.10.2018
B5: Technical report dated 12.12.2018
B6: QC result pass dated 15.05.2019
B7: QC result pass dated 15.05.2019.
Witness Cross examined
PW1: Abhishek Mulleria
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
