Date of filing: 20.11.2020
Date of Disposal:31.01.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
BENGALURU – 560 027.
DATED THIS THE 31st DAY OF JANUARY, 2023
CONSUMER COMPLAINT NO.1002/2020
PRESENT:
SRI.RAJU K.S,
Noorulla Khan,
S/o Ahamadulla,
Aged about 43 years,
R/at No.54,
Basaveshwara Layout,
Bengaluru-560 094. ……COMPLAINANT
Rep by Sri.R.B.Sadasivappa, Advocate
M/s Samsung India Electrical Private Limited,
-
Two Horizon Center,
Golf Course Road,
Sector-43, DLF-PH-E,
Haryana-122 202,
Rep by its Authorized Signatory. …… OPPOSITE PARTY-1
Rep by Sri.J.Nanda Kishore, Advocate
Samsung Crystal Connections BEL,
No.198, New BEL Road,
Near M.S.Ramaiah Hospital,
Opp.Barister Coffee Shop,
Bengaluru-560 094,
Rep by its Authorized Signatory.…… OPPOSITE PARTY-2
Srivaru Solutions,
Exclusive Samsung Mobile Service Center,
No.494, 1st Floor,
-
Sampige Road,
Bengaluru-560 003,
Rep by its Authorized Signatory.…… OPPOSITE PARTY-3
//JUDGEMENT//
BY SRI.SHIVARAMA K, PRESIDENT
The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite parties to pay a sum of Rs.79,999/- or replace with a new mobile Samsung, Model Note 10 Plus and to pay a sum of Rs.5,00,000/- for unfair trade practice and such other reliefs as this commission deems fit in the circumstances of the case.
2. Even though the notice been served on the opposite party No.2 & 3, the opposite party No.2 & 3 remained absent and placed ex-parte.
3. It is not in dispute that the opposite party no.1 is the manufacturer of subject Samsung Mobile, opposite party no.2 is the dealer and opposite party no.3 is the service provider. Further, it is not in dispute that the complainant had purchased Samsung S-10+ mobile handset from Reliance retail shop and paid a sum of Rs.73,900/- and opposite party no.3 shop took back the defective mobile handset and issued credit note for Rs.73,900/- stating that Rs.73,900/- paid by the customer towards purchase of Samsung mobile handset Model Note 10+ from the 2nd opposite party by paying additional Rs.6,099/-. Hence, in total the complainant had paid Rs.79,999/- towards the purchase of note 1+ Samsung mobile on 1st December 2019. Further, it is not in dispute that the complainant’s Samsung mobile handset was given for repair to opposite party no.3 in two times.
4. It is the further case of the complainant that since there was manufacturing defect in the mobile, he approached 3rd opposite party and 3rd opposite party had kept the mobile for 3 days from 25.08.2020, 28.08.2020 and on 17.08.2020, the complainant had given the mobile for repair to opposite party no.3 and at that time he had kept the mobile for 8 days. Further, since the problem in the hand set continued he asked the opposite party no.3 to replace with a new mobile and till the date of complaint the same has not been replaced. Hence, the complaint came to be filed.
5. It is the further case of the opposite party no.1 that since the complainant had admitted that he had purchased the mobile for business purpose, the complainant cannot be a ‘Consumer’ as contemplated under Secton-2(7)(1) of Consumer Protection Act. Further, the complainant did not get tested the mobile through an expert. Hence, the say of the complainant that the mobile handset has manufacturing defect is not sufficient. Further, the complainant himself did not approach the opposite party no.3 for replacement or for repair rather one Sachin had visited the opposite party no.3 for the repair of the mobile. Further, as per settled position of law if mobile is used for substantial period under such circumstances the customer is eligible to get refund to an extent of 70% of mobile value and this principle is applicable if any defect is found during warranty period. Further, even though mobile has been used more than 9 months still opposite party no.1 has agreed to give full refund of mobile price, but on verification it came to know that mobile was used for business purpose by 3rd party.
6. To prove the case, the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P4 documents. The Area Service Manager of opposite parties (RW1) has filed affidavit in the form of his evidence in chief and got marked EX.R1 to R6 documents.
7. Counsels for both the parties have filed written arguments.
8. The points that would arise for consideration are as under:
i) Whether there is deficiency of service on the part of the opposite party No.1 to 3 ?
ii) Whether the complainant is entitle for the
compensation as sought ?
iii) What order ?
9. Our findings on the aforesaid points are as follows:
Point No.1 : In affirmative
Point No.2 : Partly in affirmative
Point No.3 : As per the final order for the following;
REASONS
10.POINT NO.1:- The complainant(PW1) and Area Service Manager of opposite party(RW1) company have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. It is the contention of the learned counsel for the opposite party no.1 that according to PW1, because of the defect in the mobile given by opposite parties, he was not able to work, nor do business and had lost number of customers. Further, he was using net banking through his mobile and the customers could not deposit the amount and he could not pay the salary to his employees. Hence, the admission of the complainant himself is sufficient to hold that the subject mobile was used for commercial purpose. Section-2(7)(1) and the explanation given to the said Section in Consumer Protection Act, 2019 contemplates that the commercial purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. Hence, on the oral say of the complainant that he had sustained loss in his business because of defect mobile itself is not sufficient to hold that the complainant had used the mobile for commercial purpose other than for his self-employment. The onus is heavily on the opposite parties to prove that the complainant had used the subject mobile set for commercial purpose and the complainant cannot be a ‘Consumer’ as contemplated under Section-2(7)(i) of 2019. The opposite party did not produce any documents to substantiate the said fact. Hence, there is no merit in the contention of the learned counsel for the opposite party No.1 to that aspect.
11. The other point raised by the learned counsel for the opposite party no.1 that without there being an expert evidence with regard to the defect in the mobile, it cannot be inferred that the mobile purchased by the complainant was a defective one. In support of the contention, counsel for opposite party no.1 relies the judgment reported in I (2011) CPJ 254 (NC) in between Kamal Kishore V/s Electronics Corporation of India Limited and another. In the said judgment, the complainant alleged manufacturing defect persisted in the TV but did not file any engineers report nor any other convincing evidence before the Forum and during the warranty period the dealer did not receive the single complaint about their being any defect in the TV set. In the circumstances, the Hon’ble NCDRC had dismissed the complaint on the ground that opinion of an engineer who would have been an expert in the field of TV manufacturing/repairing has not been inferred.
12. Further, the counsel relies the judgment rendered by Hon’ble NCDRC in Revision Petition No.3973/2012. In the said case, the fact is that there was over heating in the engine of the car and the said defect was removed. Hence, the Hon’ble NCDRC found that the report of an expert was essential or some other evidence showing manufacturing defect should have been admitted. Hence, due to lack of evidence the complaint came to be dismissed. Further, counsel for opposite party no.1 relies the judgment in I (2010) CPJ 235 (NC) in between Classic Automobles V/s Lila Nand Mishra and another. In the said judgment, it is held that onus to prove manufacturing defect lies on complainant. Since no expert evidence to prove manufacturing defect in the vehicle, alleged defects cannot be termed as manufacturing defect. Further, the vehicle repeatedly brought to service station for repairs. Hence, there was no ground to hold that the complainant’s vehicle was suffering from manufacturing defect. Hence, the Hon’ble NCDRC had dismissed the complaint.
13. Further, counsel also relies the judgment in Civil Appeal No.5759/2009 in between SGS India Limited V/s Dolphin International Limited. In the said judgment, it is observed that 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. Further, the counsel also relies the judgment rendered by NCDRC in II (2017) CPJ 462 (NC) in between Bhagwan Singh Sekhawat V/s R.K.Photostate and Communication and others. The facts in the case are that there was display problem occurred after more than 6 months and there was problem of ringer and key pad and there was no display problem at that time, while giving for service on 30.10.2008 and on 27.11.2008 the complainant disclosed ringer problem. In the circumstances, the Hon’ble NCDRC has held without any expert opinion regarding defects in the mobile set, it cannot be said that there was any manufacturing defect.
14. Now coming to the case on hand, it is not in dispute that the mobile set was purchased on 1st December 2019 as per EX.P1 and it was given for repair on 07.08.2020 as per EX.P2 to opposite party no.3 on the complaint of No battery backup, slow charging, back camera blur (IQC SKIP). Further, again the handset was given for repair on the problem all power key comes out, super slow-motion and not working properly, back-glass poor fit and gave the mobile on 17.08.2020. Again on 25.08.2020 the handset was given with defect like Auto brightness working, speaker disturbance S-pen received as per Ex.P3. It was given on 04.09.2020. On perusal of the job card it appears that within the warranty period the complainant had given the mobile hand set for repair to opposite party no.3. Further, the complainant had used the mobile hand set for more than 9 months without repair issue. However one or the other problem occurred in the mobile hand set since from the date of purchase. The job card itself speaks about the problem. Therefore, we feel an expert opinion is not necessary when an admission is made by the opposite party itself speaks about the alleged defect made by the complainant.
15. Further, according to RW1, the customer is eligible to get refund to an extent of 70% of mobile value and even though mobile has been used for more than 9 months still opposite party no.1 has agreed to give refund full of the mobile hand set price. Hence, we feel there is deficiency of service on the part of the opposite party no.1 in not getting the handset product and in not refunding the mobile price as assured.
16. The other ground urged by the counsel for the opposite party no.1 that on verification it was found that the mobile has been used for business by 3rd party. The same has not been proved by the opposite party no.1. Further, it is the contention of the learned counsel for the opposite party no.1 that the complainant himself did not approach the service provider rather one Sachin had approached. No doubt, the document produced by the complainant reveals that one Sachin had approached to opposite party No.3. We feel whoever might have given the hand set is not a material one, but which mobile was given for repair is a material one. Hence, there is no merit in the contention of the learned counsel for the opposite party no.1. Accordingly, we answer this point in affirmative.
17.POINT No.2:- The complainant claimed refund of a sum of Rs.79,999/- or replace the subject mobile with a new one. The complainant did not produce the said defect mobile before this Commission. Further, it is not clear as to whether the complainant has been using the said defective mobile hand set or not as on date of his evidence before this Commission i.e., on 22.03.2021. Hence, we feel the complainant is entitle for full refund of mobile price as assured in Para No.15 of the written version subject to the return of the said handset to opposite party no.1. Further, the complainant claimed a sum of Rs.5,00,000/- for unfair trade practice adopted by the opposite party, Rs.2,00,000/- for deficiency of service, Rs.2,00,000/- for mental agony suffered and Rs.1,00,000/- for making the complainant run from home to service centre. We feel by considering of the above said facts, the complainant in total is entitle for a sum of Rs.10,000/- under the said heads. Further, the complainant claimed a sum of Rs.6,00,000/- towards loss of business. No such material is produced to evidence that the complainant owned the business and sustained loss. Further, the act of the opposite party made the complainant to approach this commission. Further, the complainant is entitle for a sum of Rs.10,000/- towards litigation cost. Accordingly, we answer this point partly in affirmative.
18.POINT NO.3:- In view of the discussion made above, we proceed to pass the following;
-
The complaint is allowed in part.
The opposite party No.1 is directed to pay a sum of Rs.79,999/- to the complainant with interest at the rate of 9% p.a. from the date of complaint till realization subject to return of defective mobile hand set to the opposite party no.1, to pay a sum of Rs.10,000/- towards deficiency of service and a sum of Rs.10,000/- towards litigation cost.
The opposite party No.1 shall comply the order within 30 days. In case, the opposite party No.1 fails to comply the order within the said period, the above said amount of Rs.20,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 31st day of January, 2023)
//ANNEXURE//
Witness examined for the complainants side:
Sri.Noorulla Khan, the complainant has filed his affidavit.
Documents marked for the complainant side:
- Tax Invoice dt.01.12.2019.
- Acknowledgment of service request dt.07.08.2020.
- Work order No.14573 dt.04.09.2020.
- Warranty card dt.01.12.2019.
Witness examined for the opposite party side:
Sri.Shibili N.T, Area Service Manager in the opposite party company has filed his affidavit.
Documents marked for the Opposite Party side:
1. Letter of Authorization Letter.
2. Certificate u/s 65B of Evidence Act.
3. Copy of the job sheet dt.07.08.2020.
4. Copy of another job sheet dt.7.08.2020.
5. Copy of the service job sheet dt.25.08.2020.
6. Screen shot of job sheet dt.18.09.2020.
