Final Order/Judgment

Date of filing   :  04 August,  2017.

Date of Order :  11 August,  2023.

Mr. DHIRAH KUMAR DEY, Hon’ble Member.

            The instant case arises when Mr. Laltu Samanta, the Complainant, filed a complaint U/S. 12 of the Consumer Protection Act, 1986, hereinafter called the said act, against (1) M/s. Reliance Retail Ltd., (2) M/s. Exclusive Samsung Service Centre, (3) M/s. Samsung India Electronics Pvt. Ltd., Kolkata – 20 and (4) M/s. Samsung India Electronics Pvt. Ltd., Gurgaon-202, hereinafter called the Opposite Parties or OPs, alleging purchase of defective goods not being replaced by the OPs.

            The facts, as stated in the complaint petition and emerged from the documents attached with it, are that the complainant purchased a Mobile handset of Samsung A910F brand from OP -1 shop on 04/06/2017 which was found defective as the display was not working properly on the same date after opening the box. He then returned the mobile set to the OP -1. On 01/07/2017 when he visited the OP – 1, they then brought the defective set together with the complainant to the OP – 2, which is a service centre of OP- 3 & 4.  On 14/07/2017 when he visited the OP- 2, they gave an acknowledgement of service request to the complainant demanding Rs.7,188.56 for repairing which is not included in the warranty condition.  The said mobile set was in the possession of OP-2. As the Ops failed to give him his desired mobile set in operative mode for which he spent Rs.23,900/- and the Ops refused to repair without payment, the complainant filed this instant complaint praying to direct the Ops: (i) to hand over a new mobile set of same model or better than that, (ii) to pay Rs.23,900/- as compensation for suffering, harassment and mental agony, (iii) Rs. 10,000/- as litigation cost and such other order(s) as this Commission/Forum may deem fit and proper.

            Complainant filed copies of (i) receipt issued by OP-1 on 04/06/2017, (ii) receipt issued by the OP-1 during deposition of handset with box, (iii) work order issued by OP-2 on 01/07/2017, (iv) Acknowledgement of service request issued by OP-2 dated 14/07/2017 and (v) the estimate for liquid damage set issued by the OP-2 dated 14/07/2017 as annexure to the complaint petition.

            After admitting the complaint, this Forum/Commission sent notice to the OPs to appear and file their written version.  OP- 3 & 4 appeared and filed their written version along with a petition for amicable settlement.  OP-1 appeared after ex parte proceeding has been ordered against them and filed their written version along with a petition praying to vacate the ex parte order, which was not allowed and their written version was not accepted.  Complainant then filed his Evidence on Affidavit and the Ops 3 & 4 filed questionnaire thereafter.  OP-1 also filed questionnaire.  Complainant filed replies against questionnaires of OP-3 & 4 and also of OP-1 separately.  Thereafter OP- 3 & 4 filed their Evidence on Affidavit while the OP – 1 failed to file any Evidence on Affidavit.  Complainant also failed to file any questionnaire on several occasions and his opportunity was thereby closed and the case proceeded to argument.  Argument was heard and the complainant and the OP – 3 & 4 filed their respective Brief Notes of Arguments.  We have now come to the position to deliver the final order in this case.  Original documents as submitted by the complainant are considered while coming to the conclusion.

DECISION WITH REASON

The material facts as emerged from the complaint petition and the annexed documents state that the complainant purchased a new mobile handset of Samsung brand model A910F from OP – 1 on 04/06/2017. The value of the mobile set was Rs.26,900/-. Complainant availed a discount of Rs.3,000/- for exchange/buy back policy and he paid Rs.23,900/- out of which he paid Rs. 4,780/- through his DR/CR Card and the rest amount through Bajaj Finance. Complainant alleged that after opening the box of the mobile set he found that the display was not working. He then returned the set to the OP-1 shop for replacement but on 01/07/2017 when the visited the OP-1 shop they brought him to the OP-2 service centre along with the defective set for which they demanded Rs.7,188.56 for repairing the the said mobile set as the job was not under warranty.  The complainant refused to pay any amount as he bought a new set for his personal use and the OP-2 claimed an amount for its repair. OP-2 described the defect in the set as liquid damage but did not give any reason why such defect has arisen.  A person after buying a new mobile does not have any intention to make it defective specially when he is buying this for his personal use.  In the stage of filing evidence OP- 3 & 4 attached a photograph trying to establish that the mobile set has been affected due to some damage and this is not under warranty.  But we cannot find any authenticity of this photograph relating to the disputed mobile set, hence rejected the plea.

We have found that the set was purchased on 04/06/2017 but we have not found the date on which the set after found it defective was deposited to the OP-1 shop.  However, it is evident that the OP-1 has failed to perform their duty as a seller after receiving the defective set.  They did nothing except when the complainant further visited the shop to enquire about the fate of the defective set and they brought the complainant along with the defective set to the OP-2 service centre.  So, we see that the OP-1 shop have some deficiency in service which ought to be done by them effectively for purchaser’s satisfaction.

Here, we note that the complainant has made ‘Exclusive Samsung Service Centre’ as OP-2, but the service centre has a particular name which is written in the job sheet issued on 01/07/2017 and the Estimate & Acknowledgement of Service request, both dated 14/07/2017 and it is “TIME-O-SERVICE” and the complainant failed to note it.

Now, we take the written version of OP- 3 & 4 filed on 08/11/2017 for our discussion.  In their written version OP- 3 & 4 categorically denied all the allegation of the complainant. They stated that the complainant purchased the set on 04/06/2017 and he lodged his first complaint on 12/07/2017 before the OP-2 who found after inspection that some parts of the set were damaged due to liquid seepage thus needed repair and/or replacement of some parts of the set which were not covered under warranty.  But it is evident from the annexed documents of the complainant that the set was first deposited at the OP-1 shop, though the date was not mentioned, and then a Work Order bearing No. C-460 was issued by the OP-2 service centre on 01/07/2017.  So the plea that the Ops received the first complaint on 12/07/2017 is not correct. It is stated in their written version that the complainant did not file any expert opinion about the defects of the set which has no reasoning on the ground that the complainant just after purchasing the set found it defective and returned it to the OP-1 shop.  So, we failed to apprehend the demand of the OP- 3 & 4 for an expert opinion on the defective set.  Rather, the burden of proof lies on the Ops that the set became defective due to the manhandling by the complainant. They have cited some Judgements/Orders of the Hon’ble Supreme Court and the Hon’ble National Commission, but these are relating to multiple repairing.  Here, the defect in the mobile set was found defective after opening the box.  So, question of an expert opinion does not arise in this case.  Rather, it was the duty of the OP – 2 service centre to establish their claim that the set was brought in defective condition caused by the purchaser and the set was completely operative during selling.  In concluding our consideration on the written version, we reject the plea of the OP- 3 & 4 to dismiss the instant case as the complainant has every right to seek his complaint be redressed in this case.

Now, we consider the petition filed by the of OP- 3 & 4 regarding settlement of the dispute which was first filed before this Forum/Commission on 08/11/2017, on the same date when they filed their written version.  In this petition OPs- 3 & 4 stated that they were ready to repay the entire purchase price, i. e. Rs.23,900/-, to the complainant for full and final settlement of the instant case amicably and for this they prayed for 30 days to comply with.  This prayer has been reflected in the daily order of this Forum/Commission dated 08/11/2017.  Case record says that this plea of amicable settlement is neither objected to nor accepted by the complainant and this Forum/Commission had to proceed for the final order in this case.

Be it mentioned here that the OP-1 filed their written version after the ex parte proceeding against OP- 1 & 2 has been ordered and thus the written version along with a petition praying to vacate ex parte order was not accepted.

            A bare perusal of the definition of the word ‘defect’ shows that any kind of fault or imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.

            The receipt issued by the OP-1 shop during deposition of the mobile set with the box and the Work Order dated 01/07/2017 issued by the OP-2 service centre indicate that after purchasing the mobile set and within the very short period of time complainant found the set was defective and it is the duty of the manufacturer to either repair or replace the defective set. The onus to prove that the set was defective was not on the consumer; rather it was the duty of the manufacturer or the service provider to prove that the set became defective by the consumer. They merely tried to shred their duty by saying that the set became defective for seepage problem which, we think, is not maintainable.

            The questionnaire filed by OP- 3 & 4 is so simple which is not to be mentioned specifically and the answer to the questions given by the complainant is also very simple and cannot attract any mentioning.  The questionnaire filed by the complainant can be called a bunch of evidence as already filed by him.

              All these discussions lead us to conclude that the complainant has purchased a mobile set which was later found defective and needs to be repaired or replaced and the OP-3 &4 demanded some amount through their service centre/OP-2.  Complainant should be careful while depositing the set to OP-1 shop as they had given the receipt without date of receiving.  However a purchaser can never expect that his/her newly purchased mobile set would be repaired due to defect.  He/she should expect that the defective set should be replaced. The manufacturing company should replace the defective set for the sake of their reputation which they did not.  Hence in our view we should direct the manufacturing company, the OP – 3 & 4, to replace the defective mobile set by a new one with the same model having same features and, if possible, with the model of higher value and the complainant will have to pay the extra cost over Rs. 23,900/-.  Before considering the prayer for compensation, we must take the plea of OP – 3 & 4 filed before this Forum/Commission on 08/11/2017 along with their written version.  In this plea OP – 3 &4 stated in Para – 3 that they were ready to repay the entire purchase price, i. e. Rs.23,900/- to the Purchaser/Complainant and for this they prayed for 30 days for processing and handing over the Demand Draft of this amount to the Purchaser/Complainant.  In the Affidavit-In-Chief filed by the complainant on 22/02/2019 it is mentioned in Para - 13 that the OP – 3 & 4 was ready to repay the entire purchase price, i. e. Rs.23,900/- only but till that date they did not pay any amount to him.   We find that the complainant has not taken any step for or against such offer except mentioning it in his Affidavit-In-Chief.  Perhaps he was not interested in amicable settlement, though his statement ‘But till today the OP No. 3 & 4 did not pay any amount to me’ indicates that he might have some intention to settle the case. Consequently we find no reason to award any compensation to the complainant by the manufacturers/OP- 3 & 4.  The OP – 1 shop, M/s. Reliance Retail Ltd. has miserably failed to comply with their liability in after-sale service thereby causing deficiency in service from their part for which they should compensate with an amount, we think, Rs.1,000/- is enough in this case.  All the OPs must pay Rs.6,000/- to the complainant as litigation cost as he is compelled to knock at the door of this Forum/Commission to redress his grievance.

            Hence,

                                    it is

ORDERED

            That the complaint Case bearing No. CC/249/2017 is allowed on contest against Opposite Party Nos. 3 & 4 and ex parte against O. P. Nos. 1 & 2.

            The O. P. Nos. 3 & 4 are directed to hand over to the complainant a new mobile set in operative condition of the same model having same features or, if the complainant desires, a set of higher value and the balance money over Rs.23,900/- will be paid by the complainant. The O. P. No. – 1 is directed to pay Rs. 1,000/- to the complainant as compensation. All the O. Ps. are directed to pay Rs.6,000/- to the complainant as litigation cost.

            All these directions should be complied within 60 days from the date of this order failing which the entire sum shall carry simple interest @9% p. a. till full and final compliance of this order.

Dictated and corrected by me

            Member.