Orissa

Cuttak

CC/4/2021

Debashis Mitra - Complainant(s)

Versus

Samsung India Electronics Pvt Ltd - Opp.Party(s)

Self

25 Nov 2022

ORDER

 

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.4/2021

Debashis Mitra,

S/O:Shiba Pada Mitra,

Of Kesharpur,PO-Buxibazar,PS-Purighat,

Dist-Cuttack,Odisha-753001.                                  ... Complainant.

 

                                                Vrs.

1.         Samsung India Electronics Pvt Ltd,

Registred Office at 6^thFloor,DLF Centre,

SansadMarg,New Delhi-110001.

 

2.        Proprieter,SamsungSevice Centre Chanel 4,

Opposite JMG Showroom,

MahatabRoad,PO- Buxibazar,Dist-Cuttack-753001

 

 

3.        Propriter, First Choice Mobile Shop,

      At-ManisahooChaka,Mastan Road,

      Ps-Mangalabag,PO-Buxibazar,Dist-Cuttack                                   ... Opp. Parties.

 

 

Present:               Sri Debasish Nayak,President.

                                Sri SibanandaMohanty,Member.

 

Date of filing:     08.01.2021

Date of Order:   25.11.2022

 

For the complainant:        Self.

For the O.P No 1 &2:         Mr. K C Mohapatra,Adv.& Associates.

For the O.P No 3    :         None

 

Sri Debasish Nayak,President.             

     Case of the complainant bereft unnecessary details as made out from the complaint petition in short is that he had purchased a mobile phone of Samsung A 50 (Blue Colour)  vide EMEI No.354471/10/308237/1 and 354472/10/308237/9 and charger no.R37M2AF0411RC3 on 15.3.19 for a sum of Rs.19,900/-.  After some days, the complainant noticed that the said mobile phone is a defective one as it was not functioning properly for which he reported the matter to the O.P No.2 on 3.6.19.  He was demanded money for its repair even though the said mobile phone set was under the coverage of warranty.  The claim of the complainant for providing him a new mobile phone set was turned down by the O.Ps.  The complainant had sent notice to O.Ps no.1 & 2 on 12.6.19 and to O.P no.3 on 17.6.19.  On 29.6.19, the mobile phone set was handed over to O.P no.2 for repair and on 2.7.19 it was returned to the complainant being repaired free of cost.  But on 15.2.20, the said mobile phone set of the complainant was showing continuous manufacturing problems like immediate blackening of the screen and charger problem for which he had to contact O.Ps no.1 & 2 and as his request for its repair was turned down, the complainant had sent two notices on 26.9.20 to O.Ps no.1 & 2.  He had received a reply on 13.11.20 from O.P no.1.  Ultimately, the complainant had to approach this Commission when no fruitful result yielded and has thus claimed a sum of Rs.1,00,000/- from the O.Ps towards the defective mobile phone set as purchased by him, for deficiency in their service and for his mental agony and physical harassment.  He has further claimed a sum of Rs.10,000/- towards his litigation expenses.

          He has filed copies of series of documents in order to prove his case.

2.         Out of the three O.Ps as arrayed in this case, O.P no.3 having not contested this case has been set exparte vide order dt.8.4.2022.  However, O.Ps no.1 & 2 have contested this case and have filed their joint written version.  According to the written version of the O.Ps no.1 & 2, the case of the complainant being not maintainable is liable to be dismissed with cost.  The complainant has not approached with clean hands and has rather suppressed the material facts with malafide intention. The O.Ps no.1 & 2 do not dispute about the purchase of the mobile phone by the complainant but according to them, as per the terms and conditions of the warranty, on account of any physical damage to the mobile phone set, it does not cover under the terms of warranty of policy.  The warranty of the mobile phone of the complainant has ceased with effect from 14.3.20.  The first complaint of the complainant was lodged on 3.6.19 vide job sheet no.4283933522 before the authorised Samsung Service Centre(O.P No.2).  On verification by the service engineer of the O.P no.2, it was noticed that the display of said mobile phone set was cracked and scratches were there which was caused by physical damage to the mobile phone set.  In this context, the O.Ps no.1 & 2 have relied upon the case of STEREOCRAFT Vrs. MONOTYPE INDIA LTD reported in 2000910 NCJ 59(SCDRF,New Delhi) wherein it is held that when terms of warranty does not cover refunds or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period.  The consumer can only claim repairing of the product, if permissible under the terms of Service Contract or Warranty.  The O.Ps no.1 & 2 have also relied in the case of Shiva Prasad Paper Industries Vrs. Senior Machinery Company, reported in 2006(1) CLT 527(NC) wherein the Hon’ble National Commission held that an equipment or machinery cannot be ordered to be replacement, if it can be repaired.  They have also relied in the case of Bajaj Tempo Ltd. Vs. Shri Ajwant Singh & another reported in 2014(3) CPR724 (NC) wherein the Hon’ble National Commission has opined that “manufacturing defect must be proved by expert opinion”.  Hence expert opinion report is most necessary to prove the mobile phone defective.  They have also relied on the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabotra and others (AIR 2006) Supreme Court 1586, wherein it is held that “Warranty conditions clearly refers to replacement of defective part not the car- Not a case of silence of a contract of sale to warranty.   They have also relied on the case of Mrs. Jenifer AlhonesVrs. M.D. M/S Ind. Auto and another reported in REF:2001(3) CPR 149(SCDRF,Keral) and in the case of K.L AloraVrs. Groovy Communications reported in 2002 (3) CPF 92(NC)  and also in the case of M/s. Videocon International Ltd. Vrs. K.Vijayan& others reported in 1999(1) CPR 20 (NC) wherein it has been held that for replacement of product the defect must be manufacturing and for proving manufacturing defects, export report is essential.  Accordingly, the O.Ps no.1 & 2 have prayed to dismiss the case of the complainant.

3.            Keeping in mind the averments of the complaint petition and the contents of written version, this Commission thinks it proper to settle the following issues in order to arrive at a proper conclusion.

i.          Whether the case of the complainant is maintainable ?

ii.         Whether there was any deficiency in service on the part of the O.Ps& if there was practice of any unfair trade by the O.Ps ?

            iii.        Whether the complainant is entitled to the reliefs as claimed ?

The O.Ps no.1 & 2 have filed evidence on affidavit through one Chandra Kanta Behera who had been working as Samsung Service Centre Engineer having technical knowledge and skills.

Issue no.ii.

Out of the three issues, issue no.ii being the pertinent one is taken up first to be considered here in this case.

While going through the said evidence on affidavit of the Service Engineer Chandra Kanta Behera, it is noticed that he had verified the mobile phone of the complainant on 3.6.19 and had found that the display of the said mobile phone set was cracked and thee were scratches were there on the cabinet for which he had prepared job sheet bearing no.4283933522 which was out of warranty due to physical damage to it. He had also ventilated the same to the customer/complainant that the display of the said mobile phone would be replaced which is chargeable since because it is out of warranty due to physical damage or due to misuse/mishandle.  Subsequently he had repaired the said mobile phone set by replacing the display.  Again thereafter on 26.9.20 the customer/complainant had came up admitting the screen of his phone to have been damaged while it was in his pocket.  After examining the said phone set for the second time, the said service engineer could notice that the display back glasswas broken and sub-PBA with charging connector of the said mobile phone was liquid damaged for which an estimate dt.20.1020 was given to the said customer/complainant who avoided to sign therein.  Thus, it is the contention of the said service engineer that due to misuse/mishandle of mobile phone set by the complainant, the said phone was damaged.  While perusing the case record and the annexures therein as submitted by the O.Ps, it is noticed that as per Annexure-O.P.3 A there is crack noticed on the mobile phone set, the job card also reflects the same.  The complainant has not challenged the evidence as submitted by the Service Engineer Chandra Kanta Behera.  Thus, the same has remained unchallenged and unshattered.  The said Chandra Kanta Behera, being service engineer who was working in the O.P Company, is a technical  person, who could know the reason of the damage of the mobile phone set.  For the first time even though it was out of warranty, it was repaired free of cost but subsequently the same damage reoccurred as it was out of warranty being chargeable, instead of bearing the cost thereto, the complainant had approached this Commission seeking relief against the O.Ps.  Here, it would be pertinent to rely upon the cited decision of the O.Ps no.1 & 2 in the case of STEREOCRAFT Vrs. MONOTYPE INDIA LTD reported in 2000910 NCJ 59(SCDRF,New Delhi) wherein it is held that when terms of warranty does not cover refunds or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period. More so, the claim of manufacturing defect also requires an opinion from an expert, which is not filed here in this case.

            After analysing the case in hand, this Commission comes to a view that again and again due to misuse or mishandle, the mobile phone set of the complainant was developing problems and the display was cracked and those being the physical damage occurred, are definitely out of warranty as per the terms and conditions of the warranty for which the complainant had to pay.  Accordingly, this Commission finds no deficiency in service of the O.Ps nor could locate the practice of unfair trade by the O.Ps in this case.  Hence this issue goes in favour of the O.Ps.

Issues no.i& iii.

             From the discussions as made above, it can never be said here in this case that the case of the  complainant is maintainable and the complainant is entitled to any of the reliefs as claimed by him.  Hence it is so ordered;

ORDER

Case is dismissed on contest against O.Ps no.1 & 2 and exparte against O.P no.3 and as regards to the facts and circumstances of the case without any cost.

Order pronounced in the open court on the 25^th day of   November,2022 under the seal and signature of this Commission.        

                                                                                   

 

                Sri Debasish Nayak

                                                                                                            President

                       

                                                                                                                                      Sri Sibananda Mohanty

                                                                                                               Member