IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 24^th day of August,  2023

Present: Sri. Manulal. V.S, President

Smt. Bindhu.R, Member

Sri. K.M. Anto, Member

CC No. 215/2022 (Filed on 14/10/2022)

Complainant                           Complainant                           :        Joy K.J.

                                                                                                          S/o. Jose K.P.

                                                                                                          Kollannur House,

                                                                                                          Poovanthuruthu P.O.

                                                                                                          Kottayam.

                                                                                                          (Adv. Jayakrishnan R. and

                                                          Adv. Aravind Sunil)

                                                                                                                         Vs.

Opposite party                     :   1)    Samsung India Electronics Pvt. Ltd.

                                                          20^th to 24^th floor, Two Horizon

                                                          Centre Golf Course Rd, DLF Phase,

                                                          Sector 43, Gurugram,

                                                          Haryana 122202

                                                          Rep. by its Managing Director.

                                                          (Adv. Manu J. Varappally)

                                                   2)   Samsung Smart Café,

                                                          Panvee Associates,

                                                          Parackal Building,

                                                          Lal Bahadur Shasthri Road,

                                                          Kottayam – 686002

                                                          Rep. by its Proprietor / Manager

                                                  3)    Dot Com Systems First,

                                                          KMC-XII/312, F7-8-9

                                                          Kottayam – 686001

                                                          Rep. by its Proprietor / Manager

                                                O R D E R

Sri. Manulal. V.S, President

Case of the complainant is follows:

Having convinced by the advertisements made by the opposite parties through various medias, the complainant had purchased a   Samsung A52 5G black mobile phone from the second opposite party who is an authorized dealer of the first opposite party on 23/11/2021 for an amount of Rs.37,499/-. The mobile phone showed some lagging and a slow touch response from the initial days itself. Apart from this, there was a strange delay in displaying incoming calls and text messages. On 07/02/2022 when the lagging and weak touch response significantly worsened, the complainant brought the mobile phone to the second opposite party.  According to the service staff of the second opposite party the problem was caused by a software issue, and the mobile phone needed to be upgraded to the latest version of the software. After the software was updated, the complainant received back by the mobile phone on the same day and they claimed that all the issues where fixed. However, after a few days same problems repeated and on 15 /2/ 22 the complainant returned the mobile phone to the second opposite party. This time also the staff of the second opposite party asserted that the problems were caused by a software bug again and could be resolved with an update and the mobile phone was once more handed over to the complainant on the same day. But the software upgrade only provided for a short-term solution and actual issues kept reappearing soon after the repairs. After the specified dates, the complainant had taken the phone to the second Opposite party on numerous times, but each time they had shown reluctance to address the issue and just offered temporary fixes by wiping the memory of the phone and doing software updates. 

When the issues of the mobile phone getting worse overtime, the complainant approached to the second opposite party on 10/8/22 and demanded replacement of the defective mobile phone or to refund the amount spent by him. However, the second opposite party said that the device needs to be serviced with the 3^rd opposite party and it will fix all the defects permanently.  Believing this the complainant entrusted the phone to the second opposite party who delivered it to the third opposite party and was redelivered to the complainant after two days. Even after the said repair by the third opposite party, the issues till remain. There after the complainant again visited the second opposite party on 17/8/2022 and they told him that it might be  some minor issue and the device was sent to the third opposite party again and the phone was returned to the complainant on 19/8/22 but after a few days of usage, the issues resurfaced. It is  alleged in the complaint that the slow performance, weak touch responses and other performance issues of the mobile phone were due to the manufacturing defect of the touch panel and processor of the mobile phone of which the opposite parties were very well aware of the manufacturing defect of the mobile phone and they wilfully had not entered the works done by them in the service register and had not provided the complainant any  receipts except on 17/8/ 22, when the complainant specifically demanded for the same. It is alleged in the complaint that the first and second opposite parties had wilfully delivered a mobile phone having manufacturing defects to the complainant and the acts of the opposite parties amounts to deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to replace the mobile phone with the brand new one having no defects or to refund the amount of Rs.37,500/- together with interest and to pay Rs.20,000/- as compensation along with Rs.10,000/- as cost of this litigation.

On admission of the complaint notice were duly served to the Opposite parties. Though the notice was received by the opposite parties, except the first opposite party others did not care to appear before the commission and to file their version. Hence second and third opposite parties are declared as ex-party.   Version of the first opposite party is as follows:

 Complainant had purchased Samsung smartphone on 23/11/2021 for a consideration of Rs.37,499/-.  A complaint was lodged by the complainant and the said complaint was thoroughly inspected and no defects were found by the service centre.  There were no manufacturing defects in the phone and the handset was defect free. The opposite party did not commit any deficiency in service or unfair trade practices.  All the communications by the complainant to the first opposite party was handled as per company rules and regulations and the complainant was informed the warranty terms and conditions in detail.                          The service centre informed the complainant that there was no manufacturing defect in the hand set was defect free. Under the terms and conditions of the warranty it was not mentioned that replacement or refund would be provided in case of no defects, out of warranty period, physical damages or mishandling of the same or when the opposite party is not approached for the defects in the set.  The first opposite party or their agents, dealers, service centre have not committed any deficiency in service or unfair trade practice.

 Complainant filed proof affidavit in lieu of Chief examination and marked exhibit A1 and A2. Sandeep sahijwani who is the director customer satisfaction of the first opposite party filed proof affidavit in lieu of chief examination. No documentary evidence from the side of the opposite party.

On evaluation of complaint, version and evidence on record we would like to consider the following points.

1. Weather there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2.  if so, what are the reliefs

Point No.1 and 2

There is no dispute on the fact that the complainant had purchased Samsung A52 5G black mobile phone from the second opposite party on 23/11/2021 by paying an amount of rupees 37,499/-. Exhibit A1 is tax invoice issued by the second opposite party for the same. According to the complainant the mobile phone started to show some lagging issues and a slow

touch Response from the initial day itself. There was a delay in displaying incoming call and text messages. It is submitted by the complainant that on 7/2/2022 he brought the mobile phone to the second opposite party and the service staff of the second opposite party informed that the problem was caused by software issue and they upgraded the latest version of the software.

However, the same problem re appeared within a few days and on 15/2/22 the phone was entrusted to the second opposite party and this time also they upgraded the software. But the problem persisted and on 10/8/2022 when the complainant demanded for the replacement the second opposite party told him that the device needs to be serviced by the third opposite party.

On that day the complainant entrusted the phone to the second opposite party and they delivered the same to the third opposite party and the phone was redelivered to the complainant on 12/8/ 22. But this time also the opposite parties f ailed to cure the defect of the phone. It is alleged by the complainant that the phone having inherent manufacturing defect and due to that the opposite parties are unable to rectify the defect of the phone. it is proved by exhibit A2 that the complainant had entrusted the phone to the third opposite party on 17/8/ 22 for repairing works. on perusal of exhibit A2 we can see that the description of the defect is stated as” sometimes touch not working”. And it is further proved by exhibit A2 that the 3^rd  opposite party had done the upgradation of the software.  From a mere reading of exhibit A2 we can see that the phone was entrusted within the coverage of warranty which is provided by the first opposite party who is the manufacturer of the phone.   

        The complaint was resisted by the first opposite party contending that the phone had no manufacturing defect. The first opposite party submitted that whenever a complaint is registered by the complainant the same was properly attended by the authorised service centre. It is further contended by the first opposite party that on a detailed inspection it was found that the phone was a defect free one. Ongoing through the pleadings and from exhibit A2 it is evident that the mobile phone had some defect within the warranty period and the first opposite party who offered the warranty to the complainant is bound to rectify the defects under the warranty which is undertaken by them.  Though the complainant alleged manufacturing defect but he did not adduce any evidence to prove the same.  The reasons only known to him he did not take any steps to inspect the phone by an expert to prove that the said phone had inherent manufacturing defect. Without expert evidence, we cannot hold that the said phone is suffering from inherent manufacturing defects. However, we already found that the said phone had some defect and the opposite parties failed it to cure the defects under warranty. The act of the opposite parties amounts to deficiency in service.

Considering the nature and circumstances of the case we partly allow the complaint and pass the following orders.

1. We hereby direct the first opposite party to rectify the defect of the Samsung A52 5G black mobile phone of the complainant within 30 days from the receipt of the copy of this order failing which to repay an amount of Rs.37,500/- (Rupees Thirty seven thousand and five hundred only) to the complainant.
2. We here by direct the first opposite party to pay Rs.7,500/- (Rupees Seven thousand and five hundred only) as compensation to the complainant for the deficiency in service on the part of the first opposite party.
3.  We hereby direct the first opposite party to pay Rs.2,000/- (Rupees Two thousand only) as cost of this litigation.

 Order shall be complied within 30 days from the receipt of the copy of this order failing which the compensation amount shall carry 9% interest from the date of this order till realisation.

Pronounced in the Open Commission on this the 24^th day of August, 2023

Sri. Manulal V.S, President             Sd/-

Smt. Bindhu R, Member                 Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Tax invoice dtd.23-11-21 issued by 2^nd opposite party

A2 – Copy of acknowledgement of service request

Exhibits marked from the side of opposite party

Nil

                                                                                      By Order

                                                                               Assistant Registrar