Haryana

Ambala

CC/315/2020

Manju Rani - Complainant(s)

Versus

Samsung India Electronic Pvt LTd - Opp.Party(s)

Ankush Gupta

15 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	315 of  2020
Date of Institution	:	10.12.2020
Date of decision	:	15.02.2023

 

Manju Rani W/o Sh. Tarsem Lal R/o ward No. 5 Near Ravi Dass Mandir Tehsil Naraingarh District Ambala

          ……. Complainant.

                                                Versus

1. Samsung India Electronics Pvt. Ltd. 20^th  to 24^th  floor two Horizon Center, Golf Course Road Sector-43 DLF PH-V, Gurugram (Gurgaon) 122002 Haryana through its authorized signatory
2. Chadha Communication through its authorized officer, address Main bazaar Naraingarh Ambala.
3. Kohli Telecom authorized service center of Samsung address 114/6/13 in front of Parkat Shiv Ambala Cantt. through its authorized
4. Punjab National Bank Insurance through Chadha Communication address Main bazaar Naraingarh Ambala being the authorized person.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:-     Shri Ankush Gupta, Advocate, counsel for the complainant.

                             Shri Rajiv Sachdeva, Advocate, counsel for the OPs No.1 and 3.

                   OPs No.2 and 4 already ex-parte.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

 (i) To replace the mobile set with a new one or to refund Rs.16,500/- i.e. the cost of the mobile.

(ii) To pay Rs.20000/- as compensation for mental agony and physical harassment suffered by the complainant.

(iii) To pay cost of litigation to the tune of Rs.11,000/-

or grant any other relief which this Hon’ble Commission deems fit in the facts and circumstances of this case. 

2.             Brief facts of the case are that vide Bill No. 3783 dated 07/10/2020 the complainant had purchased New Samsung Mobile handset, from OP No.2 with the assurance that the mobile in question is of a good quality and  that in case any defect occurs therein, the same will be replaced by it. OP No.2 also suggested the complainant to get it finance from OP No.4. Resultantly, the complainant got the said mobile handset financed from O.P No. 4 through OP No.2, vide A/c No.DMI0008981679 dated 07.10.2020, for which she was required to pay 8 installments of Rs.2178/- per month. After 3 days of purchase of the said mobile it started giving problems i.e. "auto off network problem and sometime touch auto work". As such, the complainant contacted O.P No.2 on 11/10/2020 in the matter. O.P No.2 gave assurance to the complainant that the defective mobile handset will be replaced with new one within a week. When it was not done, the complainant again contacted O.P No.2 which suggested her to take the mobile handset to the authorized service center (OP No.3) for replacement thereof with a new one.  The complainant contacted OP No.3, which also assured replacement of the defective mobile phone with a new mobile within a week. Resultantly, the complainant deposited her mobile phone with O.P No.3, yet, the same was not replaced with a new one and no reason was assigned for the same. Ultimately, OP No.3 refused to replace the mobile phone with new one thereby causing mental agony and harassment to the complainant.  Hence this complaint.
3.           Upon notice, OPs No.1 and 3 put in appearance through their  counsel and filed their joint written version  wherein they raised preliminary objection to the effect that the complaint is without any cause of action; the  complainant has not approached with clean hands and suppressed material facts etc. On merits, it has been stated that the alleged defect in the mobile handset cannot be determined on the simpliciter submissions of the complainant and it needs a proper analysis test report to confirm the same i.e. through an expert report as required under the provisions of the CP Act, 2019 but the complainant has miserably failed to do so. The handset in question was duly checked by the engineer of the OPs and no defect was found therein. The complainant approached the service center of OP No.1 on 17.10.2020 vide job sheet no. 4312152101 and reported AUTO OFF, NETWORK ETC problem in her handset. The engineer of the service center duly received the handset and checked the same without any charges, but no such reported defect was found in the handset. The engineer told to complainant that the handset is having no defect and just only to refresh the handset, they would refresh and update the software of handset. The complainant agreed and accordingly, the handset was deposited for updation in software only. After the software of handset was updated, the service center contacted the complainant and told that the handset is ready for delivery and requested to collect it but the complainant without any cause, and in furtherance of her illegal intention to get illegal benefits from the OPs, did not collect the said handset. After that, the service center contacted the complainant a number of times with a request to collect the handset lying in working condition, but she failed to do so. Finding no other way, the service center issued a letter to complainant and again requested to collect the handset, but instead of collecting it, the complainant has filed this complaint. The complainant has sought the refund of price of the product along with compensation and costs of litigation, which are clearly beyond the expressed terms & conditions of warranty. The Apex Court and Hon'ble National Commission in their various judgments have settled that the replacement of product and/or refund of price cannot be granted until and unless complainant has proved by cogent, credible and adequate evidence supported by the opinion/report of a technical expert that the product suffered from inherent manufacturing defect. Rest of the averments of the complainant were denied by OPs No.1 and 3 and prayed for dismissal of the present complaint.
4.           None put in appearance on behalf of OPs No.2 and 4 as a result of which they were proceeded against exparte vide order dated 14.10.2021.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 and C2 and closed the evidence on behalf of complainant.
6.           On the other hand, learned counsel for OP No.1 and 3 tendered affidavit of Sandeep Sahijwani-General Manager, Customer Satisfaction Department of Samsung India Electronics Pvt. Ltd.  as Annexure RX alongwith documents Annexures OP1/1 to OP1/5 and closed the evidence on behalf of OP No.1 and 3.
7.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 and 3 and carefully gone through the case file.
8.           Learned counsel for the complainant submitted that by neither replacing the defective mobile handset in question nor refunding the price thereof, despite the fact that the defects occurred therein within few days of its purchase i.e. during subsistence of warranty period, the OPs are deficient in providing service.
9.           On the other hand, learned counsel for OPs No.1 and 3 submitted that there was no defect in the said mobile handset rather it required updation of the software, as such, when the mobile handset was landed with the service centre, the software was updated, yet, the complainant failed to collect her mobile handset despite several oral as well as written requests by the OPs. He further submitted that the complainant has failed to place on record any documentary evidence in the shape of expert report to prove that the mobile handset suffers from any manufacturing defect, as such, her bald assertions to that effect has no significant value in the eyes of law.
10.           Since the fact with regard to purchase of the mobile handset in question, from OP No.2 vide Bill No. 3783 dated 07/10/2020 is not in dispute, as such, the only moot question which needs to be decided in this complaint is, as to whether, the complainant is entitled to get replacement or refund of the mobile handset in question or not? It may be stated here that the entire case of the complainant is based on one job card dated 17.10.2020 Annexure C-2 placed on record. However, bare perusal of the said job card, Annexure C-2 reveals that the mobile handset in question was landed with the service centre of the OPs with the fault of AUTO OFF NETWORK PROBLEM AND SOMETIME TOUCH AUTO WORK. It is coming out from the job card, Annexure OP-1/2 that software was updated in the said mobile handset by the service centre. There is nothing on record that thereafter the mobile handset was ever taken by the complainant to the workshop for any defect or any defect was reported to the OPs through any email/letter or otherwise. On the other hand, OPs No.1 and 3 have placed on record letter dated 19.11.2020 Annexure OP1/3 having been sent through registered post, Annexure OP-1/4 wherein, they had requested the complainant to take back her mobile handset, which was ready for delivery after software updation. However, there is nothing on record that the complainant has collected the same.
11.           In our considered opinion, the mere fact that the mobile handset needed software updation within few days of its purchase in itself did not entitle the complainant to seek replacement or refund of the mobile handset, especially, when the software was updated by the OPs during warranty period without charging anything. To seek replacement/refund of the mobile handset, the complainant was required to place on record an expert report to prove that the mobile handset in question was suffering from manufacturing defect particularly when the stand of the OPs No.1 & 3 is that there is no defect in the mobile in question.  
12.           In our considered opinion, when a manufacturing defect is alleged in any good/product, the onus of proof has to be on the complainant, which in the present case is find missing.  In 2017 (3) CPR 24 (NC) [Baljit Kaur Vs Divine Motors and Anr.] the Hon'ble National Commission dismissed the Revision Petition filed by the petitioner-Baljit Kaur by holding as under:-

"….While it is true that this has no relation with any manufacturing defect, it is also true that the manufacturing defect as alleged has not been proved before the fora below, by reference to any expert report in this regard. When a manufacturing defect is alleged, the onus of proof has to be on the complainant. Admittedly, the petitioner/complainant had produced, in support of her allegation of manufacturing defect, her own affidavit alongwith affidavit of 7-8 more witnesses. The District Forum correctly held - and the state commission concurred - t that these affidavits are no substitute for an expert opinion, to hold that the vehicle was indeed suffering from some manufacturing defect (s)..."

         

For the reasons recorded above, since the complainant has failed to prove her case, as such, this complaint stands dismissed with no order as to cost. However, the complainant is at liberty to collect her mobile handset from the service centre, in case, she has not collected the same till date. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.

Announced:- 15.02.2023

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President