IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Monday the 6thday of March, 2023.
Filed on 20.07.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.RSholy, B.A.L, LLB (Member)
CC/No.175/2022
between
Complainant:- Opposite parties:-
Sri.Vineeth K 1. Samsung Electronics Main office
S/o P.R.Krishnadas DLF Centre, Sansad Marg, 6th floor
Anugraha New Delhi-110001
Muhamma P.O.
Alappuzha 2. Amazone India
(By Adv.Vijayasree.S) Amazone World Trade Centre
Brigade Gateway, 8th floor, 26/1,
Dr.Rajkumar Road, Mulleswaram (w)
Bangalore-560055, Karnataka
(Exparte)
3. Mobile Lab
Samsung Exclusive Service Centre,
Ground floor, TCC 26/159,
Annas Arcade Spencer Jn.,
Mahathma Gandhi Road,
Opp.Canara Bank, Statue,
Thiruvananthapuram-695001
(Adv.P.S Anaghan for O.P No.1)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed u/s 35 of the Consumer Protection Act, 2019
1. Material averments briefly stated are as follows:-
Complainant’s brother placed an order for a smart phone manufactured by the 1st opposite party M/s Samsung Electronics through the 2nd opposite party M/s Amazon India on 16/10/2020. It was worth Rs. 16,499/- and complainant ‘s brother presented the same to him. While using the smart phone it used to get freezed and after few months complainant started facing with drop call problems and app crashes issues. On 30/8/2021 it was entrusted with the 3rd opposite party who is the authorized service centre and they informed that the mother board of the phone has to be replaced. Even after waiting for 4 days they could not explain why such an issue occurred. Complainant had availed extended warranty known as Samsung care plus. After few weeks the smart phone again started showing the same issues. The smart phone started over heating, slow charging, camera related issues and application bugs. Later the touch screen of the phone started not responding and complainant again produce the same before the 3rd opposite party on 16.2.2022. 3rd opposite party informed the complainant to change the mother board again and to change its screen display. However they could not give satisfactory reason for the issues occurred repeatedly. The product delivered to the complainant’s brother was a defective one. 3rd opposite party could not offer satisfactory service for the same. This amounts to deficiency in service. Hence the complaint is filed for giving a direction to 1st and 2nd opposite parties to refund Rs. 16,499/- being the cost of the phone and to pay an amount of Rs. 20,000/- as compensation for the mental agony.
2. 1st opposite party filed a version mainly contenting as follows:-
This opposite party is a well reputed company and is having a very large customer base. The present complaint is wholly misconceived, groundless and unsustainable in law. Any defects noticed in the Samsung handset will not automatically come within the meaning of manufacturing defect. The present complaint is baseless and flagrant abuse of law only to harass and blackmail this opposite party. The complaint is filed suppressing material facts. There is no deficiency of service from the part of this opposite party. No defects/ issues due to water/physical damages, mishandling, improper handling or any other reasons, and defects which could be rectified for such situation/ condition replacement or repair or refund or compensation is not mentioned in the warranty card. This opposite party is willing to carry out necessary repairs and replacement of the parts, strictly as per the terms and conditions of the warranty manual. Since there is no deficiency of service from the part of this opposite party the complaint may be dismissed.
3. 2nd opposite party remained exparte.
4. 3rd opposite party filed a version mainly contenting as follows:-
Complainant is not legally entitled to maintain a complaint before this Commission and so the complaint is not maintainable. Since intricate questions of fact and law are involved, it is not possible to adjudicate the case under summary procedure. This opposite party is the dealer of Samsung mobile service. There is no deficiency of service or unfair trade practice from the part of this opposite party. Hence this frivolous and vexatious complaint may be dismissed with cost.
5. On the above pleadings following points were raised for consideration:
1. Whether there is any deficiency in service from the part of opposite parties as alleged ?
2. Whether the complainant is entitled to get an order to refund Rs. 16,499/- being the price of the phone
3. Whether the complainant is entitled to realise an amount of Rs. 20,000/- as compensation ?
4. Reliefs and costs?
6. Evidence in this case consists of the oral evidence of PW1 and 2 and Ext.A1 and A2 from the side of the complainant. Ext.C1 commission report and Ext.C1(a) photograph were marked through PW2. Opposite parties have not adduced any evidence either oral or documentary.
7. Point No. 1 to 3:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 and A2.
8. PW2 was the expert commissioner in this case. After giving notice to both sides, on 3/1/2023 he inspected the phone and prepared Ext.C1 report. He had also taken a photograph regarding physical damage and it is marked as Ext.C1 (a). There was complaint regarding mother board. It took One minute and 22 seconds to boot whereas the normal time required is 10 seconds. The phone was becoming over heat, hanging issue and application issue were there. These are manufacturing defects.
9. As per Ext.A1 invoice dtd. 16/10/2020 one Adwaith Gireeshan who is the brother of the complainant purchased a Samsung mobile phone for Rs. 16,499/-. It was manufactured by the 1st opposite party and the purchase was through online platform of the 2nd opposite party M/s Amazon India. 3rd opposite party is the authorized service centre of M/s Samsung. The mobile phone was given as a gift to the complainant by brother. Complainant had availed an extended warranty known as Samsung care + extended warranty plan on 30/8/2021 by paying an amount of Rs.1299/-. While using the phone there was some issues and it was entrusted for repairs with the 3rd opposite party on 30/8/2021. After 4 days it was returned after curing the defects. However there was no explanation regarding the cause of defects. Again the defects reoccurred and on 16/2/2022 it was entrusted with the 3rd opposite party. However they informed to change the mother board. According to PW1 a defective product was sold to his brother and this amounts to deficiency of service and hence the complaint is filed for realizing the price of the phone and compensation of Rs. 20,000/-. Opposite parties 1 and 3 filed separate version and 2nd opposite party remained exparte. They contended that there is no deficiency of service from their part. Complainant got examined as PW1 and Ext.A1 and A2 were marked. As per the request of the complainant an expert was appointed to inspect the phone . Accordingly after issuing notice to both sides on 3/1/2021 he inspected the phone and prepared Ext.C1 report and Ext.C1(a) photographs. When examined as PW2 the commissioner stated that the phone is having manufacturing defect. He had also noticed breakage of the glass.
10. The learned counsel appearing for the 1st opposite party pointed out that Ext. A1 bill is in the name of one Sri. Adwatih Gireeshan whereas the name of the complainant is Sri. Vineeth .K. During cross examination PW1 clarified that the phone was purchased by the brother and it was given as a gift to him. As per the definition of the Consumer “if a person using a product with the approval of the person who purchased the same he will also come under the definition of the consumer.” Here in this case PW1 has clarified that it was purchased by his brother and it was given as a gift to him. Moreover it is seen that Ext.A2 Extended warranty is issued in the name of Sri. Vineeth who is the complainant in this case. Ext.A2 extended warranty is seen issued by the 3rd opposite party M/s Mobile Lab. So the contention of the learned counsel appearing for the 1st opposite party that PW1 is not a consumer is unfounded. The case of PW1 is that on 30/8/201 he entrusted the phone with 3rd opposite party for repairs and after 4 days it was returned after repairs. However the same complaint repeated on 16/2/2022 and when it was entrusted to the 3rd opposite party they requested to change the mother board. As per Ext.A1 bill the phone was purchased on 16/10/2020 and Ext.A2 extended warranty was taken on 30/8/2021. On a perusal of Ext.A2 it is seen that the period of extended warranty is not mentioned. However since it is taken on 30/8/2021 it can be presumed that it is for a period of one year ie, up to 29/8/2022. The 2nd defect occurred on 16/2/2022 ie, within the period of extended warranty.
11. PW2 expert after giving notice to both sides inspected the phone on 3/1/2023. Though the complainant was represented by his counsel. Opposite party did not turned up at the time of inspection. According to PW2 the phone had physical damage such as a breakage on the display which is seen in Ext.C1 (a). There was manufacturing defect. There was complaint with mother board and it required more time for booting. It took about one minute and 22 seconds for booting where as the normal time is 10 seconds. The phone was becoming heated and there was hanging issues. The applications were not working properly. Hence PW2 concluded that the phone is having manufacturing defect. During cross examination PW2 stated that the 1st defect ie, physical damage occurred due to carelessness. However he denied that it was the cause for internal complaint. In other words PW2 denied that the complaints of the phone occurred due to the careless usage of the phone. So from the evidence of PW2 coupled with Ext.C1 report it can be safely concluded that the phone is having manufacturing defect.
12. Admittedly the phone was purchased on 16/10/2020 and an extended warranty was taken on 30/8/2021. When extended warranty is taken it is the duty of the opposite parties 1 and 3 to repair the same under warranty. It is to be noted that the name of the warranty is Samsung care +extended warranty plan. So it is connected with the 1st opposite party. We do agree that PW1 has not produced any document to show that it was produced for repairs before the 3rd opposite party. During cross examination PW1 clarified that the slip which was issued at the time when the phone was produced was taken back by them. Here in this case though opposite parties 1 and 3 filed separate versions they did not enter the witness box to prove the case on oath. As held by the Hon’ble Surpeme Court in AIR1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
13. The evidence on record shows that the phone is having manufacturing defect. Admittedly the phone was purchased on 16/10./2020 and PW1 was using the same till 30/8/2021 while the 1st issued occurred. Thereafter the defects were cured by the 3rd opposite party and again the defects occurred on 16/2/2022. Hence no direction can be given to the opposite parties to refund the price of the phone . However since the defects occurred during the extended warranty period opposite parties 1 and 3 can be directed to cure the defects under warranty free of cost.
14. Complainant is claiming an amount of Rs. 20,000/- as compensation on account of deficiency of service. It is noticed that the phone was purchased for an amount of Rs. 16,499/-. In the version filed by the 1st opposite party they claimed that they are well reputed company. Probably believing the reputation of the 1st opposite party complainant’s brother might have purchased the same. However the life period of the mobile phone worth Rs. 16,499/- cannot be one year. Since the phone became defective within a period of one year, complainant is entitled for compensation and we are limiting the same to Rs. 10000/-. These points are found accordingly.
15. Point No. 4
In the result complaint is allowed in part.
a) Opposite parties 1 and 3 are directed to cure the defects of mobile phone of complainant purchased as per Ext.A1 bill and having extended warranty as per Ext.A2 free of cost.
b) Complainant is allowed to realise an amount of Rs. 10000/- as compensation from the opposite parties 1 and 3 jointly and severally.
c) Complainant is allowed to realise an amount of Rs. 5000/- as cost from the opposite parties s 1 and 3 jointly and severally.
d) Complaint against 2nd opposite party is dismissed.
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 6th day of March,2023.
Sd/- Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Vineeth K(Complainant)
PW2 - Sri.Abdul Rasheed.K (Commissioner)
Ext.A1 - Invoice dtd.16.10.2020
Ext.A2 - Extended warranty
Ext.C1 - Commission report
Ext.C1(a) - Photographs
Evidence of the opposite parties: NIL
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Comp.by:
