Karnataka

Bangalore 4th Additional

CC/195/2018

Dr.H.N.Chandrappa, - Complainant(s)

Versus

M/s Seema Enterprises, - Opp.Party(s)

03 Jan 2020

ORDER

Complaint Filed on:06.02.2018

Disposed On:03.01.2020

                                                                              

 

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

 

 

 

   03^rd DAY OF JANUARY 2020

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

                          

                      

Complaint  No.195/2018

 

 

 

COMPLAINANT

Dr.H.N Chandrappa, Aged about 62 years, No.118/E, 16th Main, Vijayanagar, Bengaluru – 560 040.   Advocate – Sri.G.S Patil         V/s

OPPOSITE PARties

1) M/s.Seema Enterprises, No.199/E, Near State Bank of Hyderabad, I Main Road, II Stage, Vijayanagar, Bengaluru – 560 040.   Represented by its Proprietor.   2) M/s. Samsung India Electronics (P) Ltd., 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana – 122 202.   Represented by its Managing Director.   3) Mr.Santosh Kumar Upadhyay, Senior Executive, Customer Experience, M/s.Samsung India Electronics (P) Ltd., 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana – 122 202.   4) Mr.Bipen Kumar, Senior Executive, Customer Experience, M/s.Samsung India Electronics (P) Ltd., 20th to 24th Floor, Two Horizon Centre, Golf Course Road, Sector-43, DLF PH-V, Gurgaon, Haryana – 122 202.   5) M/s.Samsung India Electronics (P) Ltd., Regional Office, No.85/1, North Tower, Dr.Radhakrishnan Road, Mylapore, Chennai, Tamilnadu – 600 004.   Represented by its Managing Director.   6) Miss Pooja M. Senior Executive, Customer Experience, Regional Office, M/s.Samsung India Electronics (P) Ltd., No.85/1, North Tower, Dr.Radhakrishnan Road, Mylapore, Chennai, Tamilnadu – 600 004.   7) M/s.Mobile Cars, Authorized Samsung Service Centre, No.183/Y, I Floor, 12th Main, Rajajinagar, Bengaluru – 560 010.   Represented by its Authorized Officer.   Advocate for OP-1 – Sri.B.Raghavendra.   Advocate for OP-2 – Sri.T.N Ramesh   (OPs.3 to 6 are deleted)   (OP-7 Ex-parte)

                                       

 

O R D E R

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to replace the new Samsung Smart Phone –C9 Pro, to pay a sum of Rs.50,000/- towards damages, mental torture, humiliation, to pay cost of the proceedings and to grant such other reliefs.

 

2.      The brief facts of complaint is as under:

 

Complainant submits that OP-2 is manufacturer of Galaxy C9 Pro smart phone.  The OP-2 has given an advertisement in the printed media, electronic media & through internet by giving specifications that the smart phone is having special features including fast charging system and that the full battery will be charged within 100 minutes.  On going through the advertisements the complainant being a doctor by profession has purchased the Samsung handset/Smart phone Galaxy C9 pro Model No.SM-C900FZKDINS from OP-1 on 12.11.2017 for a sum of Rs.29,900/-.  The OP-1 has also issued warranty card.  As per the warranty card the OPs have assured that there will be guarantee period of 6 months for packed accessories excluding battery.

 

The complainant further submitted that after a week of purchase of the handset he has noticed that the battery of the handset was not charging fast which is contrary to the specifications provided but there is no problem in discharging.  As such thinking there might be defect in charger the complainant waited for a week, inspite of the said defect continued to exist.  Immediately the complainant contacted the OP-1 regarding the defect found in the above said handset.  OP-1 after hearing the defect, advised the complainant to approach OP-7 or Company’s authorized service centre.  Accordingly on 22.12.2017 the complainant approached the authorized service centre/OP-7.  OP-7 received the above handset and having examined the handset by its engineer they themselves identified that there is problem in fast charging.  Further it was told by them that the sealed handset has to be opened for detailed checkup.  However, complainant did not agreed for the same as the handset would lose its originality.  Then the complainant called the company call centre regarding the problem in the handset.  They advised the complainant to handover the above handset to the service centre to facilitate them in identifying the actual defect and to the needful.  On 02.01.2018 the complainant approached the OP-7 service center.  OP-7 collected the handset from the complainant.  The concerned engineer opened the sealed handset.  Thereafter by examining the same for a period of one hour told there is a problem in the fast charging and no charger problem.  Thereafter the complainant contacted service executive working in the OP-2 office regarding the problem in the fast charging and there is no problem in the charger and battery. 

 

The complainant submitted that there is manufacturing defect in the product as such it has to be rectified by replacing the new handset.  The OP No. 5 & 6 assured the complainant to replace the new handset and advised the complainant to send the invoice bill.  As per the advice of OP No.5 & 6 the complainant send signed invoice bill to the OP.  On 08.01.2018 the OPs sent communications through email refusing the request for exchanging the product.

 

The complainant submitted that the OPs service centre have examined the product were of the opinion that there was problem in fast charging and not either with the charger or the battery.  It is submitted that the OPs are trying to escape from its liability for exchanging the product for new one.  This attitude and behaviour of the OPs, which caused mental trauma and humiliations to the complainant who is a professional Doctor having busy schedule.  The complainant sent his repeated requests to company through email dated 10.01.2018 for replacement of the handset but till today OPs have not taken the responsibility by replacing the product.  Complainant submitted that he being a consumer having purchased the handset from OPs and the OPs have given specific warranty regarding the manufacturing defects, they have deviated from their own promises by not replacing the product inspite of they noticed that there is manufacturing defect in the product which resulted in deficiency of service.  Hence complainant approached this Forum.

 

3. In response to the notice issued to OP-1 one Sri.B.Raghavendra, Advocate files vakalath on behalf of OP-1 but failed to file version.

  

4. In response to the notice issued, OP-2 appeared through their advocate and filed their version in brief as under:

 

OP-2 submitted that the complainant not approached the Forum with clean hands.  The complaint is liable to be rejected on this ground.  The complainant submitted that his mobile is suffering from manufacturing defect and now seeking for refund of mobile price as such OP-3 to 6 is not proper and necessary party in this proceedings.  The OP-3, 4 and 6 are employees of the company and no relief is sought against them.  Hence complaint is liable to be rejected on account of mis-joinder of parties.

 

OP-2 further denied that the OP company have released advertisement in India pertaining to Galaxy C9 Pro Smartphone through internet as contended in para-4 of the complaint.  The complainant purchased the Smartphone on 12.11.2017 by paying Indian currency.  The internet ad is issued outside Indian Territory hence it is not applicable to Indian Territory.

 

OP-2 further submitted that the complainant has approached the OP service centre only on 22.12.2017.  However the first visit was not to get resolution but to secure DOA certificate from service centre.  This fact clearly mentioned in the service job sheet dated 22.12.2017.  OP-2 further submitted that since the complainant is unable to get DOA certificate from service centre at the time of first visit later he made a series of email communications with the OPs demanding mobile replacement.  On 02.01.2018 the complainant delivered the above said handset for service.  Before diagnosing the issue the complainant communicated that he is not interested in repaired product as well as contended that his phone will not work properly as per email communication dated 02.01.2018.  This false allegations clearly demonstrate that the complainant goes to any extend to refund the mobile price.  Only issue involved in this complaint is mobile is not fast charging.  Except this issue there is no other issued in the mobile.  Regarding slow battery charging; replacement of battery is sufficient.  The company will not carry on any repairing work pertaining to existing battery.  The entire battery will be replaced which will come in a concealed pack.

 

OP-2 further submitted that the statement made by the complainant that once the product is repaired or opened it will loose its originality, it is liable to be rejected.  OP-2 further submitted that the complainant is a doctor by profession.  As such coming to a affirmative opinion that the mobile is having manufacturing defect is nothing but self-statement of complainant.  Hence OPs specifically denies the statement of complainant that there is some manufacturing defect in the mobile and it has to be rectified by replacing new mobile and there is no cogent independent expert evidence to support the complainant statement.  Further the OP-2 specifically brought to the notice of this Forum that ‘replacement of battery is suffice to resolve the complainant issue and there is no need for replacement of mobile’.  The complainant is adamant in replacement as well as not allowed to complete the service work it establishes no service is availed by OP.  As such question of deficiency in service does not arise.  The rest of the allegations made by the complainant is denied by OPs.  Hence OP-2 prayed for dismissal of the complaint with exemplary cost.

 

5. Complainant filed memo on 07.09.2018 to delete OP Nos.3, 4 and 6.  Hence they were deleted. 

 

6. In response to notice issued to OP-7 failed to appear before the Forum.  Hence placed ex-parte.

 

7. In the course of enquiry into the complaint, the complainant and the OP-2 have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OP-2 has submitted written arguments.  Complainant and OP-2 have produced certain documents.  We have heard the arguments of complainant and OP/s and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

8. Based on the above materials, the following points arise for our consideration;  

 

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether he is entitled for the relief sought for?

 

 

2.  What order?

 

9. Our findings on the above points are as under:

 

Point No.1:  In the Negative

Point No.2:  As per the order below

REASONS

 

 

10. Point No.1:  On perusal of the pleadings, evidence and documents produced by both the parties, it is an admitted fact that the complainant purchased Samsung Galaxy C9 Pro Smart phone, model No.SM-C900FZKDINS from OP-1 on 12.11.2017 by paying a sum of Rs.29,900/-.  It is also admitted fact that the said mobile is having a warranty period of 6 months for packed accessories excluding battery. 

 

11. The main contention of the complainant is that, the OPs have given a advertisement that the said handset having special features including fast charging etc.  The battery will be charged within 100 minutes.  The complainant alleged that the said handset purchased from OP-1 is not charging fast.  Hence the complainant approached the OPs for replacement of the said handset.  The OPs service centre has accepted that there is a problem in the fast charging.  Hence as per the warranty complainant is entitled for replacement of the product/mobile handset.  But the OPs have rejected the claim of the complainant.  Complainant further submits that the said handset is having a warranty of 6 months for packed accessories excluding battery.

 

12.  On perusal of the documents produced by both parties, it is seen that Ex-A2 the complainant had purchased the Samsung Smartphone C-9 Pro from OP-1 for Rs.29,900/- on 12.11.2017.  As per Ex-A4 service job sheet the complainant approached the OPs service centre for slow charging on 22.12.2017.  In the job card OPs have clearly mentioned “Customer not agreed for the service, requesting for replacement, because of more than 14 days we can’t issue DOA certificate”.  Thereafter the complainant issued a email dated 31.12.2017 regarding replacement of the above said handset.  The OPs have advised the complainant to handover the above said handset for inspection as per Ex-A5.  Hence on 02.01.2018 the complainant given the said handset for inspection as per Ex-A7 for slow charging.  On perusal of the job card dated 02.01.2018 in the defect description column written as ‘slow charging’.  In the repair description it has left blank.  On the above 2 job sheets the OP service engineer not mentioned that there is a problem in the handset.  On perusal of Ex-A8 the OPs have not completed the repair work.  In the meantime the complainant seek for replacement of the said handset.  In the said email the complainant has written as under:

 

I don’t want to use repaired phone

They opened set and screen gaurd removed

Definitely that phone will not work properly

-if this is the problem why I should compromise.

Please replace the set

 

13. Based on the facts and circumstances of the case, we are of the opinion that, there is no deficiency in service on the part of OPs.  Firstly the complainant has not allow the OPs to inspect the mobile.  In the job card the service engineer has not mentioned that there is a defect in the handset.  Secondly the complainant has not produced any technical expert opinion with regard to defect in the handset.  Without any expert opinion this Forum cannot come to the conclusion that there is a manufacturing defect in the handset.  Further the complainant himself alleged that there is a manufacturing defect.  This contention of the complainant cannot hold water in view of the judgment passed by Hon’ble National Commission in R.P No.4803/2012 Raj Bala Versus The Managing Director, Skoda Auto India Pvt. Ltd & others.  Further in the said case it has been observed by the National Commission in “Premanchal Motors versus Ramdass & Anr.” as reported in [II (2009) CPJ 98 (NC)] that the abandonment of a new vehicle soon after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned was not a prudent conduct on the part of the consumer. 

 

In “Maruti Udyog Limited versus Hasmukh Lakshmichand and Anr.” [III (2009) CPJ 229 (NC)], the National Commission observed that the manufacturing defect is a fundamental basic defect and to prove such a defect, opinion of expert is necessary.  The onus to prove that there was manufacturing defect was on the complainant as observed by the National Commission in “Classic Automobiles versus Lila Nand Mishra & Anr.” [I (2010) CPJ 235 (NC)]. 

 

In “Maruti Udyog Limited versus Casino Dias” [IV (2009) CPJ 144 (NC)], it was observed by the National Commission that consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification.  The learned counsel argued that in the present case, there was no evidence of any manufacturing defect and hence the present petition should be dismissed.

 

Based on the above citation, facts and circumstances of the case the complainant is not entitled for replacement of the handset.  Accordingly, we answered the point No.1 in the negative.

 

14. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

 

 

 

                 

  O R D E R

 

 

The complaint filed by the complainants is dismissed.  No order as to costs.

         

 Supply free copy of this order to both the parties.

   

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 03^rd day of January 2020)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

                         
             

 

 

 

 

 

 

 

 

 

                      

Witnesses examined on behalf of the complainant by way of affidavit:

 

Dr.H.N Chandrappa.

 

 

 

Copies of documents produced on behalf of complainant:

 

Ex-A1	Copy of internet printout (advertisement)
Ex-A2	Copy of retail invoice dated 12.11.2017.
Ex-A3	Copy of warranty card.
Ex-A4	Copy of job sheet dated 22.12.2017.
Ex-A5	Copy of internet communication dated 31.12.2017.
Ex-A6	Copy of internet communication dated 02.01.2018.
Ex-A7	Copy of job sheet dated 02.01.2018.
Ex-A8	Copy of email communication dated 02.01.2018.
Ex-A9	Copy of internet communication dated 05.01.2018.
Ex-A10	Copy of internet communication dated 08.01.2018.
Ex-A11	Copy of internet communication dated 10.01.2018.

 

Witnesses examined on behalf of the OP-2 by way of affidavit:

 

Sri.H.Dhananjay, who being working as Area Service Manager in M/s.Samsung India Electronics (P) Ltd.

 

Documents produced on behalf of Opposite Party-2:

 

Ex-B1	Letter of authorization dated 21.11.2018.
1)	Copy of missing literature of Ex-P1.
2)	Copy of R.P No.4803/2012 @ para-6 in page-4.
3)	Copy of R.P No.390/2003 @ para-3 in page-1.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

 

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