DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 18^th  day of June 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                 Date of filing:  08/11/2016

              : Sri.V.P.Anantha Narayanan, Member

           CC/174/2016

Harikrisnan.S

S/o.Sankaranarayanan

Sabareesam,

2^nd Street,

Vidya Nagar West,

N.S.S.Engineering College P.O,

Akathethara,

Palakkad-678008,

Palakkad, Kerala.

(By Adv.K.Dananjayan)

                                      Vs

1. M/s. Samsung Smart Phone Cafe,

CSI Shopping Complex, Near Mission School Junction,

T.B.Road, Palakkad -678014

Rep.by Authorised Signatory/MD.

(By Adv.S.R.Santhoshkumar)

2. M/s.Samsung India Pvt.Ltd.

Regd.Office,Block No.3, Bhaskar

Apartments, Near MLA Hostel, Civil Line,

Chitnavis Marg, Nagpur, Maharashtra-440001.

(Rep by Authorised signatory/MD)

3. M/s.Samsung India Pvt.Ltd.

Regd.Office,Block No.3, Bhaskar

Apartments, Near MLA Hostel, Civil Line,

Chitnavis Marg, Nagpur, Maharashtra-440001.

(Rep its Managing Director/Manager/

Authorised Signatory/Principal Officer)

(By Adv.P.Jayapal Menon)

4. Apps Daily Solution Pvt.Ltd.

Opp.Dist.Ayurved Hospital HPO Road,

Sulthanpet, Palakkad-678001

(Rep by its Manager/Authorised Signatory)

5. Apps Daily Solution Pvt.Ltd.

Regd.Office, Apps Daily Solution Pvt.Ltd,

D3137-39, Oberoi Garden Estates,

Chandivali, Farm Road,

Andheri(E) Mumbai-400072

(Rep by Authorised Signatory)

Regd.Office, Apps Daily Solution Pvt.Ltd,

D3137-39, Oberoi Garden Estates, Chandivali,

Farm Road, Andheri(E) Mumbai-400072

(Rep by its Managing Director/Manager/

Authorised signatory)

                                                          O R D E R

By Sri. V.P.Anantha Narayanan, Member

          The case of the complainant is briefly stated as follows.  The complainant is an engineer by profession and for his professional and personal use he has purchased a mobile handset telephone from the 1^st opposite party’s shop which is the retail outlet of the 2^nd and 3^rd opposite parties who are leading manufacturers of house hold electrical items, electronic computers and house hold consumer durables.  They have a worldwide reputation in the field of mobile smart phones.  By believing their advertisements and propagandas, complainant purchased a mobile phone handset from the 1^st opposite party on 09.12.2015 by paying Rs.15,100/- (Rupees fifteen thousand one hundred only).  The description of the phone is as follows.  Product code : SMJ700FZDD

Product Description: SMJ700FZDD – composite pack

SM-J700FZDD

SM-J700FZDD-C      IMEI No. 352840079972306

SM-J700FZDD-E      Invoice No.32090577039

According to the complainant, after its purchase he was using the phone with utmost care and caution.  This mobile phone carried a guarantee issued by the 1^st opposite party.  The mobile handset has one year unlimited warranty provided by 1^st, 2^nd & 3^rd opposite parties and the complainant was using the handset by strictly following the terms and conditions mentioned in the guarantee card.  On 28.06.2016, when complainant was using the phone by sitting in a chair inside the drawing hall, it has fallen from his lap to the floor, which is having less than two feet beneath.  Usually such a fall will never cause breaking of screen of the mobile handset, but due to the substandard quality of the mobile handset, its screen got broken and became unable to use, as pleaded by the complainant.  According to him, screen of the mobile handset is a vital component and if it is broken, the display in the screen will be lost and the mobile phone will be unfit for use.  In this case also, as the screen is broken, the complainant cannot use his mobile handset since then.  At the time of purchase of the handset, as per the instructions of the 1^st, 2^nd  & 3^rd opposite parties, complainant had availed an insurance policy by paying Rs.999/- inclusive of all taxes which was issued by opposite parties 4 & 5 and this policy is known as “complete protection lite”.  On seeing that the screen of the mobile handset is broken, he has given it on July 1^st, 2016 for servicing and getting the telephone repaired at the authorized service centre of opposite parties 1 to 3 i.e at 4^th opposite party, stating the complaint.  As a preliminary service charge, the complainant had to pay Rs.500/- to the 4^th opposite party, the executive of the 4^th opposite party has accepted the mobile handset of the complainant from him on the same day.  As per the natural principles of business the opposite parties 4 & 5 should have returned the mobile handset of the complainant within a reasonable time by carrying out its repairs.  The complainant has made telephone calls to all the concerned persons and also sent an email on 03.09.2016 stating his grievance and asking them to repair and handover the defective mobile handset which he has entrusted on 01.07.2016 to the 4^th opposite party.  In that communication, it was also clearly stated that they have to give damages against the manufacturing which has happened only due to the manufacturing defect and low and substandard quality of the said set.  In reply to that they have acknowledged the claim and also informed the complainant that the service centre would provide the damages to the complainant.  Before filing the complaint and handing over the disputed mobile handset, complainant had sent an email to the 5^th opposite party stating his grievance, in response to which the 5^th opposite party asked the complainant to pay Rs.500/- to the service centre and as per that communication the complainant paid Rs.500/- to the 4^th opposite party.  After entrusting the mobile to the 4^th opposite party, they are liable to return the mobile after effecting necessary repairs, but till then there was no response from the opposite parties, pleaded by the complainant.  They vaguely stated that the defective part is not available.  According to the complainant, that justification is not acceptable because the opposite party company is one of the giants in the mobile world and they should have rectified the defect within a reasonable time.  Moreover the manufacturing defect of this mobile handset i.e the breaking of screen has happened within the warranty period.  Hence, according to the complainant, all the opposite parties are jointly and severally liable to indemnify the loss, inconvenience and hardship caused to the complainant.  As there is no positive response from the opposite parties and as he felt the possibility of getting the mobile handset back after effecting due repair is very remote, complainant has purchased a new mobile handset for meeting his daily use and to save the contingency.  According to the complainant, he was constrained to purchase the new mobile handset only due to the non returning of the mobile handset entrusted to 4^th opposite party in time.  Even now the mobile handset of the complainant is in the custody of the 4^th opposite party.  Due to the above reason the complainant is entitled to get damages to the tune of Rs.25,000/-, i.e Rs.15,000/- spent for the defective mobile and Rs.10,000/- as damages for the mental agony suffered by him.  Complainant further pleads that all the opposite parties have committed deliberate latches and also deliberate and willful omissions and absence in non attending and non settling of the genuine grievance of the complainant.  Hence, the complainant is left with no option other than to approach this Forum to get his genuine grievance redressed.  Hence this complaint.  Complainant further pleads that complainant’s grievance is still continuing because his mobile handset is still with the 4^th opposite party and is not returned after effecting repair.  The mobile handset is having an insurance coverage through “complete protection lite” issued by 1^st, 4^th & 5^th opposite parties.  It is also cuppled with an agreement known as “end user agreement”.  Since the 4^th opposite party is carrying on business at Palakkad, this Hon’ble Forum has territorial jurisdiction to grant the reliefs sought by the complainant against the opposite parties. 

Hence complainant prays to the Hon’ble Forum to admit the complaint and order the opposite parties to pay Rs.25,000/- as damages, i.e Rs.15,000/- spent for the defective handset and also to get Rs.10,000/- for the mental agony suffered by the complainant and to pay the cost of this proceedings and any other ad-interim relief.   

          The complaint was admitted and notices were sent to opposite parties to enter their appearance and file their versions.  Opposite parties 2 & 3 filed their chief affidavit.  According to the opposite parties the alleged manufacturing defect cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same.  The complainant has failed to prove the alleged manufacturing or technical fault, neither placed on record any analysis test report for the perusal of this Forum.  Thus, according to these opposite parties the complaint is ill motivated.  It is true that on 09.12.2015 the complainant purchased a mobile phone worth Rs.15,100/- which is manufactured by the opposite parties and on 11.07.2016 the complainant approached the authorized service centre of these opposite parties with a complaint of display broken and the said complaint was duly registered vide job card.  The handset was checked by the service centre and found that the display was broken which is outside the scope of warranty and upon the request of the complainant the display was replaced with a new one but complainant was not ready for paying the charges, since the damage is outside the scope of warranty, but ultimately he paid the repair charges amount and mobile was delivered.  Thereafter again on 01.09.2016 the complainant approached the service centre with a complaint of display damage and complaint again was duly registered vide job card.  This opposite party could not repair the handset because the concerned “DNA” part was not available and hence the repair became impossible.  The complainant was informed of these facts but he was not ready to take back the handset from the service centre, thereafter the handset was returned to the insurance company as it was unable to repair.  According to these opposite parties complainant approached the service centre two times for the physical damage to his handset.  The 1^st complaint was duly attended but 2^nd time the damage was very serious due to fall and hence the handset was not fit for repair due to heavy impact on its display that normally not fit for repair under any circumstances which is well known to the complainant.  The handset was damaged twice due to severe impact by fall and display broken which has happened only due to lack of care and caution while handling electronic products for which these opposite parties not responsible.  These opposite parties also contend that as per the terms of the warranty policy only issues arising during the warranty period will be repaired free of costs and all repairs which come within the warranty period will be repaired free of cost.  In this case the service centre was ready to render better service within the scope of warranty and even now to provide service on cost but, the complaint of the handset of severe physical damage that too not possible for repair but filed this frivolous complaint.  Hence these opposite parties deny all the evidence tendered before this Forum and contend that there is no manufacturing defect in the phone and the opposite parties have not committed any deficiency of service or unfair trade practice as alleged by the complainant.  Hence these opposite parties contend that the complainant is not entitled to get the phone replaced or refunded; he is also not entitled to any compensation or costs of the proceedings or any other relief.  Hence complaint should be dismissed.   

          On the part of the complainant chief affidavit was filed and documents marked as Exts.A1 to A6.  On the side of the opposite parties 2 & 3 chief affidavit was filed. 

           The following issues arise in this case.

1. Whether there is any deficiency in service and/or unfair trade practice committed from the part of the opposite parties?
2. If yes, the remedy and relief available to the complainant ?

Issues 1 & 2

From Ext.A1 it is clear that the complainant has purchased the mobile phone from the 1^st opposite party for Rs.15,100/- (Rupees fifteen thousand one hundred only).  Complainant also paid Rs.999/- as insurance premium for Apps Daily Insurance at the time of purchasing this mobile handset as part of insurance package which is clear from Ext.A4.  Email communication issued by 5^th opposite party dated.30.06.2016 to the complainant confirming complainants claim intimation number and requesting the complainant to pay Rs.500/- as per the policy to the 4^th opposite party is evidenced by Ext.A2.  When the mobile handset screen was broken due to its fall on 28.06.2016, the complainant has given it on July 01,2016 for servicing and getting it repaired at the 4^th opposite party.  Ext.A3 issued by the 4^th opposite party to the complainant is job sheet, and cash receipt of Rs.500/- and acknowledgement of display of the complainant’s mobile handset broken received date, damage type etc.  Email communication dated.03.09.2016 sent by the complainant to Mrs.Anjaleena that Apps daily executive will pay him a certain amount for the damage and Samsung will pay him the complete amount of the new handset and reply to this email from Mrs.Anjaleena stated that due to non availability of spare part with manufacturer complainant’s handset would be sent on “As is basis” and also the estimate of damage to complainant’s handset - all these are clear from Ext.A5.  Ext.A6 is a reply from Mrs.Anjaleena on 03^rd September, 2016 to the complainant’s email letter dated.03.09.2016 which states that due to non availability of damaged spare parts with manufacturer, handset of the complainant will be sent to him on “As is basis” etc.  

2^nd & 3^rd opposite party who filed their chief affidavit contend that outside interference or repair was evident from the product, thereby breaking the terms of the warranty provided.  The alleged defect in the product cannot be determined on simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same and complainant has failed to prove the alleged manufacturing/technical fault, nor placed on record any analysis test report before this Forum.  The complainant has not demonstrated how loss was caused and in what manner compensation claimed was computed.  Opposite parties agree that on 09.12.2015 the complainant purchased the disputed mobile handset for Rs.15,100/- which is manufactured by the opposite parties 2 & 3.  On 01.07.2016 complainant approached the service centre of these opposite parties with a complaint of display broken and the display was replaced with a new one receiving charges for the same from the complainant.  Again on 01.09.2016 the complainant approached the service centre with a complaint of display damage and this opposite party (4^th opposite party) could not repair the hand set because the concerned “DNA” part of the disputed damaged mobile handset was not available and hence, its repair became impossible.  According to these opposite parties there was no manufacturing defect in the defective disputed mobile handset of the complainant, and they have not committed any deficiency of service or unfair trade practice and therefore complainant is not entitled to get any compensation or the costs of the proceedings. 

By perusing chief affidavits and other documentary evidences produced before this Forum, we understand that the complainant has purchased a mobile phone handset from the 1^st opposite party on 09.12.2015 by paying Rs.15,100/-(Rupees fifteen thousand one hundred only) which has one year warranty and complainant has also availed Apps Daily Insurance of complete protection lite for his mobile phone, by paying Rs.999/-  premium to the 5^th opposite party by the complainant; we also observe that on seeing that the screen of his mobile handset is broken, complainant has given it on 1^st July 2016 to the 4^th opposite party for servicing it and getting its damage repaired and the 4^th opposite party collected Rs.500/- as preliminary service charge which are evident from job sheet and cash receipt of Rs.500/- issued by the 4^th opposite party to the complainant, which proves commission of unfair trade practice on the part of opposite parties i.e  collecting Rs.500/- from the complainant for servicing his damaged mobile handset during its warranty period instead of providing a free service.   We are also of the view that since opposite parties 2 & 3 admit that no prompt after sale service during warranty period was not provided by them and they could not repair the damaged handset of the complainant because of non availability of the concerned DNA part and its repair has become impossible; “admitted facts need not be proved”.  It is also not necessary for the complainant to prove the manufacturing defects of his disputed damaged mobile handset because the same is still in the hands of the opposite parties.  We also view that manufacturers and dealers of the products have duty to supply the spare parts of the products sold by them to their customers and if they fail in this duty it constitutes deficiency in service and unfair trade practice on their part.  In this case also we observe that even after collecting the preliminary service charge of Rs.500/- (Rupees five hundred only) for repairing and servicing the complainant’s disputed damaged mobile handset the opposite parties did not repair the same nor returned the same nor paid any compensation to the complainant which acts on the part of the opposite parties have caused immense mental agony and inconvenience to the complainant who has purchased this costly mobile handset for his trouble free and convenient use of the mobile phone which is essential for his profession.  Under the above circumstances complaint is allowed. 

We direct all the opposite parties jointly and severally to pay Rs.15,100/- (Rupees fifteen thousand one hundred only) towards the invoice price of the mobile phone purchased by him; they are also ordered jointly and severally to pay him Rs.10,000/- (Rupees ten thousand only) by way of mental agony caused to him; also Rs.3,000/- (Rupees three thousand only) should be paid jointly and severally to him towards cost of proceedings incurred by the complainant. 

This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to interest at 9% p.a on the total amount due to him from the date of this order till realization.

 Pronounced in the open court on this the 18^th day of June 2018.

                                                                                                Sd/-

                  Shiny.P.R

                   President 

                        Sd/-       

                   Suma.K.P

                    Member

          Sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1   -  Photocopy of Retail Invoice dated.09.12.2015 issued by 1^st opposite party

                to the complainant

Ext.A2   -  Photocopy of email communications dated.30.06.2016 issued by the 5^th

                Opposite party to the complainant to pay Rs.500/- to the 4^th opposite party

Ext.A3   -  Photocopy of Job sheet, cash receipt for amount collected Rs.500/- and

               acknowledgement of understanding terms of service, dated.01.07.16

Ext.A4   -  Photocopy of the print out for MRP of Rs.999/- being insurance amount

               paid by the complainant at the time of purchase of the mobile phone

Ext.A5   -  Photocopy of Email communication dated.03.09.16 sent by the complainant

                to Mrs Anjalena of 5^th opposite party along with reply

Ext.A6   -  Photocopy of Email communications dated.03.09.16 issued by

   Mrs Anjalena of 5^th opposite party to the complainant

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost

            Rs.3,000/-