BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    22^nd DAY OF NOVEMBER 2018

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to replace the (LED SAM SAMSUNG LED48 48H5500) worth Rs.84,900/- with brand new LEDSAM SAMSUNG LED48 48H5500) worth Rs.84,900/- or refund entire amount of Rs.84,900/- and to pay jointly and severally an amount of Rs.2,00,000/- as compensation to the mental agony, troubles and unfair trace practice from OPs.

2. The brief allegations made in the complaint are as under:

Complainant submits that, she is house wife and having two children namely Suhas K.P and Sneha K.P.  Mr.Suhas is Software Engineer working at Continuserve Softech India Pvt. Ltd.  Recently Mr.Suhas got the increment.  Out of his love and affection towards his mother in his increment he decided to give gift to his mother.  He decided to buy a LED TV., as a gift to his mother, for which he paid an amount to his mother to buy a LED TV out of his increment.  Complainant submits that, she along with his husband and son on 15.12.2014 visited to Pai International Electricals Ltd., Girinagar Branch at Bangalore i.e., OP-1 has showed hospitality and behaved very friendly in selecting LED TV.  OP-1 is authorized dealer of SAMSUNG i.e., OP-2, insisting to prefer Samsung LED TV and finally the complainant and her family members were decided to buy LED TV (LEDSAM SAMSUNG LED48 48H5500) worth Rs.84,900/-.  Complainant submits that, she paid an amount of Rs.82,400/- on 15.12.2014.  OP-1 is a dealer and showroom liability to deliver the goods to customer home.  Accordingly OP-1 has delivered the said LED TV worth Rs.84,900/- to the house of the complainant and received the balance payment of Rs.2,500/- and handed over the invoice to the complainant.  The delivery boys of the OP-1 informed the complainant that, installation person will contact her and check the availability to install the TV set.  On 19.12.2014 the installation was done by the person sent by OP-1, at that time, complainant and her husband were there.  That the TV was wall mounted and the installation was done and the TV was switched on.  The installation person showed two three channels.  The complainant’s husband observed that, one yellow vertical line was coming on the screen, the same was informed to them at the time of installation, but the installation person justified that, it is cable signal variations and it can be sought out by changing the set top box and the cable wire.  Thereafter the installation person obtained the signature of the complainant’s husband as TV delivered and everything is working fine without any issues and installation is done accordingly.

Complainant submits that, the said problem of yellow line was not sort out even after changing of cable wire, the same was intimated to OP-1 orally.  But OP-1 as a dealer instead of intimating the customer that, the LED TV supplied by them is defective, they informed the complainant to check the cable set top box and earthing from an electrician and also asked to check if the problem persist by connecting USB or a Blu-ray player then the complainant did accordingly and the problem was not resolved and the OP-1 conveyed that, they will send a person to sort out the issue.  Even after several oral complaints the OP-1 has never bothered to visit and sort out the problem, instead of that, OP-1 said the service engineer from the Samsung will come and sort out the problem.  Accordingly, on 25.12.2014 Service Engineer has come from the Samsung and verified LED TV, he noticed that, there is no physical damage that was found from outside of the LED TV and said that the problem was difficult to sort out from him also and asked the complainant’s son to call to the customer care and report the problem.  Accordingly the service engineer took the assistance from his Samsung customer care and operates the TV with technical help from customer care.  But after his operating the TV, the problem exploded with yellow lines turning to black colour lines and it started coming horizontally and vertically on both sides of the TV screen.  The service engineer informed the complainant that, this was a “Defective piece that was installed and which was ignored by the installation person who came to install the TV.  Then he termed the matter as DEAD ON ARRIVAL case” and informed the complainant to approach the dealer for replacement.  Copies of photos of defective LED TV from the day one till date and outer photos of the TV shows the problem and to show that, TV is not damaged from the outside.

Complainant submits that the complaint has been registered in the Samsung Customer Service Centre in LED (UA48H5500ARLXL), bearing serial # (0A1D3PBFA01287T).  After lodging of the complaint the service engineer who was present to check the LED TV, found that, there was internal crack in the TV, for which said problem arrived on the screen of the TV, complainant’s son has insisted to give the reasons in writing.  But service engineer refused to do so and he informed that, he will report to his head office on the basis of the complainant’s complaint and Samsung will replace with new LED TV, on the hope the complainant has waited till 27^th December 2014, but there was no response from Samsung Service Centre.  Finally the complainant started to call the customer care to know the status of her complaint.  Initially the customer care service people have responded politely and they used to convey the status that the service engineer has reported the TV to be “DEAD ON ARRIVAL” and would be getting a replacement and asked to wait for couple of days.  Thereafter when complainant started calling customer care to check the status they started to answer in very rough manner and behaved very rudely.

Complainant submits that the complaint lodged by her was referred to Ranjith Nair, Senior Executive Customer experience Samsung India electronics private limited as he is the final decision maker.  After several communications with him, finally he sent a mail stating that, “our products pass through rigorous quality checks which are globally recognized; therefore, Samsung products stand out as best as compared to other products in the same category.  The feedback shared by you regarding the product quality is appreciated.  We would like to mention that Samsung provides a free of cost repair during warranty period to ensure equated performance of your product.  This warranty is considered void if the product is tampered within the warranty period or due to improper usage.  This is in line with the terms and conditions mentioned in our warranty card provided with every product at the time of sale.  In this case, the consumer has to bear the expenses of the repair as once the product is tampered with, Samsung cannot assure the equated performance of the same product.  Therefore, we request you to bear with our efforts to serve you better by allowing us to repair your unit on a chargeable basis.  As such the total cost of repair would be Rs.20,152-64.  For panel part replacement as it was found internally damaged”.  And refused to consider the complainant grievance for replacement discounted / free of cost repair of your product.  Complainant submits that, as a manufacturer of the LED TV Samsung Pvt Ltd., has to take care of the product till perfectly deliver to hand of customer.  It is pertinent to note that, there is NO outside damage and miscarriage of the TV supplied by OP-1 and the OP-1 has supplied and wall mounted and then install the TV to the complainant’s home, when such being the case where is the question of improper usage, miscarriage and how the complainant can be held responsible for an internal panel getting damaged in the absence of any external damage whatsoever.  It is further noted by the personals of you both sent for verification and installation have notice that there is no damage from the outside of the TV, if the complainant believed to the miscarried or improperly used, there should be a damage or even a single scratch on the outside panel of the TV first, without any damage to the outside, how TV can damage inside.  The complainant has been harassed, penalized and forced to pay the total cost of repair for no mistake on their side and the complainant totally regrets for having bought SAMSUNG TV and has lost the complete trust in the brand for the inconvenience caused to them.

Complainant submits that, it is utterly fault respondent and damage what OPs mentioned it is manufacturing default.  The OPs have not accepting their fault and not properly behaving with the customer.  It is further submitted that, as a manufacturer and supplier the OPs have failed to carry believe of the customer like the complainant.  It is the first gift of complainant’s son after he started to work out of his love and affections with his mother.  By supplying defective product smash the entire happiness of the family of the complainant, which lead mental torture and agony.  As a manufacturer and supplier failed to discharge their duty towards their customer by adopting unfair trade practice.

Complainant submits that, the complainant sent legal notice to the OPs calling upon them to rectify the mistake from their part, the notice sent by the complainant duly served on them, but they have not turned up so far.  It clearly shows that, the OPs have adopted unfair trade practice and failed to discharge the duty of manufacturer and dealer.  Complainant left with no other alternative option filed a complaint against OPs.

3. Despite service of notice in the news paper OPs-1 & 2 failed to appear and were placed ex-parte.

4. In response to the notice issued, OP-3 appeared through their advocate and filed their version contending in brief, as under:

That the complaint is not maintainable in law or on facts.  That apart there is no deficiency in service from OPs as well as there is no defect in the TV as alleged by the complainant.  As such on these grounds, the complaint is liable to be rejected with exemplary cost.  That OP-3 denies the allegation made in para 5 of the complaint that after installation of TV, the complainant husband noticed yellow vertical line and same is justified by the installation person as cable fault.  It is submitted each product before its marketing, under goes rigorous quality test and after passing through several test only the product will be released to market.  That apart, at the time of installation if any issue is found in the product, under such circumstances no installation will be done and defect if found it will be noted in installation report and it will be intimated to the company for necessary action.  That in the present case the TV is installed by the company representative on 19.12.2014 at customer place as well as a demo is carried out before the customer only.  In fact after installation of TV, the company representative will conduct demo of the product to verify and confirm that the TV is functioning normally.  Only after proper functioning of TV, the company representative will take signature from the person before whom demo is conducted and same is reported to the company and close the issue.  However, contrary to above procedure as well as documentary evidence, the complainant alleges certain new facts before the Forum just to gain sympathy of the Forum.  When really certain issue is noticed by complainant husband on 19.12.2014 itself, what extraneous force compelled the complainant husband to endorse job satisfaction on 19.12.2014 after concluding demo is not explained.  The documentary evidence clearly speaks contrary to complainant allegation and when the documentary evidence clearly reflects the true fact, the oral allegation of the complainant has to be discarded.

That OP-3 denies the allegation of the complainant that she has been harassed, penalized and forced to pay cost for replacement of particular part.  It is submitted as per company warranty policy, the company senior executive intimated the actual cost for replacement of particular part and not beyond warranty conditions.  It is submitted when the customer failed to get positive reply from the company, latter they will start making reckless allegation against the company as well as its product.  That all these allegations are made as to fix false liability against OPs and nothing else.  That OP denies the allegation of the complainant that the company has manufactured and supplied defective product as well as failed to discharge their duty.  It is once again reiterated that each product will pass through rigorous quality test before marketing.  As such there is no substance in the allegation made by the complainant.  That after successful completion of demo, the company service centre has received first service request on 28.12.2014.  It is submitted at the time of visit to customer place, the service personnel found the TV panel is damaged/broken.  Since the said issue is outside the scope of warranty terms and conditions, the service engineer duly informed the customer that the said service will be carried out only on chargeable basis.  Since the customer has refused to bear the actual cost towards replacement of particular part (panel) the service request is closed by the service centre.

That the demo is conducted on 19.12.2014 and first service request is made on 28.12.2014 after lapse of 15 days from the date of installation.  It is further submitted the company cannot monitor as to how the product is handled as well as used by the customer after completion of installation.  It is further submitted without human intervention, the product will never damager.  That to cover up certain lacuna on the part of the complainant, the complainant simply alleges that from day one there is some issue and same is not resolved by the company.  As stated earlier the demo will be carried out before the customer as well as at their place only.  Only after completion of proper demo, customer signature will be taken to close demo issue.  It is submitted at any point of time, the instructors never force the customer to endorse job satisfaction as well as gave any false assurance to the customer as contended in the present complaint.  As such the allegations made in the complaint are make belief story set up for the purpose of present complaint only and nothing else.

That OP denies the allegation of the complainant that the service engineer has informed the complainant about supply of defective TV as contended in para 6 of the complaint.  Again it is a false allegation not supported with any certificate issued by the said engineer as contended in the said para.  That apart the said statement is unbelievable since as per document No.2 the service engineer has clearly stated that the customer has not approved the repair estimate.  When such being the case how it can be believed that the service engineer himself has certified that defective TV is supplied to the complainant is not established by the complainant.  That when there is clear endorsement about not approval of repair estimate by the service engineer, how it is possible that the service engineer himself informed that the TV IS DEAD ON ARRIVAL as well as the customer is informed that they will get replacement from the company.  That apart the say of the complainant that the customer care service people also informed that the complainant will get replacement is denied as false.  When the senior executive of the company informed that the replacement is not possible due to tampering of TV, question of giving any kind of assurance about replacement does not arise.

That the main grievance of the complainant that they are not responsible to bear the actual cost for replacement of panel.  That apart they have also sought for discounted price or free replacement of panel.  It is submitted when such being he demand from the complainant, on what ground the complainant is claiming full refund of TV price with monetary compensation is not established.  As such on this ground also the claim is liable to be rejected.  There is no allegation about existence of inherent defect in the TV.  That apart it is not established that TV is un-repairable.  It is submitted TV is repairable.  In fact the complainant son also endorsed that TV is repairable in his reply mail dated 01.01.2015.  However, due to improper usage which is contrary to warranty terms and conditions, the customer is liable to bear the actual cost for replacement of panel.  That part as per ruling of Hon’ble Supreme Court and NCDRC if part can be replaced then seeking refund of entire product cost does not arise.  As such on these grounds the claim is liable to be rejected.  That the customer is entitled for refund of entire product cost as and when the product is defunct as well as the product is in non-repairable condition.  However, in the present case replacement of panel is sufficient for normal function of TV.  That apart, the complainant has sought for discounted price for replacement of panel.  Considering all these, facts, the claim of the complainant for refund of entire product cost with other monetary compensation does not arise and same is liable to be rejected.  OP denies the allegation of the complainant that even though notice is served upon them they have not turned up and this conduct reflects adoption of unfair trade practice.  In fact no notice is received by them as alleged in para.11 of the complaint.  All other allegations which are not admitted herein expressly or by necessary implication and which are contrary and inconsistent with this version are hereby denied as false.

For the reasons mentioned above, OP-3 prays for dismissal of the complaint with exemplary cost.

5. The complainant filed an IA Under Order 26 Rule 9 of CPC dated 13.04.2016 to appoint a person as Commissioner to report the TV panel damaged or not.  The same was came to be allowed.  The said TV has been observed by team of four experts and submitted the inspection report dated 31.08.2016. 

6. The complainant in support of her case tendered her affidavit evidence reiterating the allegations made in the complaint.  Sri.Anindya Bose S/o A.K Bose, Deputy General Manager-Customer Satisfaction of OP-3 tendered his evidence by way of affidavit.  Both the parties have produced certain documents.  Written arguments have been filed.  We have also heard oral arguments.

7. The points that arise for our consideration are:

        8. Our answer to the above points are as under:

REASONS

9. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OP-3.  On going through the available materials on record an application has been filed by the complainant Under Order 26 Rule 9 of CPC dated 13.04.2016.  The said application came to be allowed.  In the affidavit filed in support of the said application, wherein para-4 the complainant has specifically stated as under:

“I state that, after lodged the complaint the OP2 to 4 have not rectify the mistake instead off that, they said there is miscarriage of the TV, physically damaged to TV, hence they have not responsible.  Legal notice was issued to them, they failed to reply.  After appearance before this Hon’ble Forum the Opposite Parties taken the contention that the Panel of the TV is broken by miscarriage of the TV which is not cover under warranty hence they are not responsible.  I further state that, the dispute is whether the TV panel is broken or not, if the panel is broken I have no case as contended by the OPs its miscarriage warranty will not cover, if panel not broken OPs are responsible to replace the TV with new one”. 

10. Referring to this, we placed reliance on the inspection report wherein the observation by team consisting of (1) G.Nagabhushan, Scientist-‘F’, (2) S.R Vijay Kumar, Scientist-‘F’, (3) Dr.N.C Joshi, Scientist-‘E’ and (4) D. Mandal, Scientist-‘D’ have stated as follows:

“Observation by team:       1. Yes, TV panel is broken

                                        2 Damage observed is inside the TV
                                           panel, there is no damage observed
                                           outside the TV panel.

Date of inspection : 31.08.2016 time : 11.30 hrs”

11. Referring to the said observation we also placed reliance on a clause No.7 of the warranty found at document No.3 reads thus:

“In case of any damage to the product / misuse detected by the Authorised Service Center personnel, the warranty conditions are not applicable and repairs will be done subject to availability of parts and on a chargeable basis only”.

12. In the light of the observation made by the inspection team members and also clause-7 of the warranty so also the clear cut undertaken given by the complainant in para-4 of her affidavit stating that “I further state that, the dispute is whether the TV panel is broken or not, if the panel is broken I have no case as contended by the OPs its miscarriage warranty will not cover, if panel not broken OPs are responsible to replace the TV with new one”.  When the TV panel is broken under such circumstances as per the own say of the complainant, she has no case.  Hence, we come to the conclusion that, the complaint filed by the complainant is devoid of merits and liable to be dismissed.  Accordingly we answered the point no.1 in the negative.

          13. Point No.2: In the result, we passed the following:          

  O R D E R

The complaint filed by the complainant is dismissed devoid of any merits.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

         Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 22^nd day of November 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 06.02.2016.

Smt.Vyjayanthi A.R

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-3 dated 08.03.2016.

Sri.Anindya Bose.

Document produced by the Opposite party-3.

MEMBER                                                               PRESIDENT

Vln*