By Smt. PREETHI SIVARAMAN.C, MEMBER
1.The complaint in short is as follows: -
Complainant purchased SAMSUNG GALAXY M 31 mobile phone worth Rs. 17,499/- through AMAZON.in by seeing an advertisement in the web site of Amazon (opposite party No.2). The warranty card provided with the mobile phone and website of opposite party No.2 there clearly mentioned the warranty of the above mobile phone as 12 months. Complainant purchased the mobile phone by seeing the warranty available for the above mobile phone.
2. Due to Covid pandemic and the advertisement seen in the opposite party No2 website, complainant had ordered the mobile phone on 24/06/2020 and complainant had received the item on 03/07/2020. When using the mobile phone complainant found some colour variation at the top of the screen of mobile phone. On 10/08/2020 complainant approached the authorised service centre of Samsung mobile phone at Manjeri (Opposite party No.3) to get the defects rectified. Then as per the direction of opposite party No.3, complainant called Samsung customer care for registering complaint. But they replied that the colour variation was caused due to the improper use of mobile phone by complainant. Complainant stated that it is a clear unfair trade practice and deficiency of service from the side of opposite party No.1. The complainant was alleged that even after contacting the authorised service centre of the manufacturer, the defects in the products were not rectified.
3. Complainant again stated that, he had purchased the above mobile phone through opposite party No.2 website. Complainant again stated that if any improper handling caused that will be done by opposite party No.2 while transit. Complainant says that the product had delivered to complainant by opposite party No.2. Hence any damage caused while delivering the phone was due to the deficiency of service from the side of opposite party No.2.
4. Thereafter on 13/08/2020, complainant contacted opposite party No.3 to get back the phone. Then he provided an estimate of Rs.4997.31/- to complainant during the warranty period. Complainant was reluctant to pay the amount because the phone was damaged during the warranty period. But opposite party No3 was not ready to give back the phone without paying the amount mentioned in the estimate. Thereafter complainant contacted opposite party No.1 and informed him that, he will file a complaint before the authority. Then opposite party No.3 tried to return only the phone to complainant, but hesitate to return the job card, rejection letter etc. Complainant had then hesitate to receive the mobile phone without job card and rejection letter. Hence on 14/08/2020 opposite party No.3 returned back the mobile phone along with job card and rejection letter.
5 After collecting the phone from opposite party No.3, complainant had switched on the mobile phone in the presence of opposite party No.3 , it is noticed that there is one inch line seen at the top of the touch screen. When the issue was placed before the 3rd opposite party, he was told that the said complaint was happened due to opening the hand set after giving heat on screen for opening the unit. When complainant showing that defect to opposite party No.3, he said that kind of scratch will be seen in the screen of the mobile phone when opened the mobile phone by heating the screen. Complainant again stated that the scratch in the mobile phone was caused due to the negligence from the side of opposite party No.3. It is a clear deficiency in service from the side of opposite party No.3. Hence this complaint.
6. The prayer of the complainant is that, he is entitled to get a new Samsung Galaxi M 31 mobile or the cost of the mobile phone with 12 % interest , Rs.1,00,000/- as compensation for the mental agony and hardship suffered by the complainant due to the act of opposite parties and Rs. 25,000/- as cost of the proceedings.
7. On admission of the complaint notice was issued to the opposite parties and notice served on them and opposite party No.1 appeared before the Commission through their counsel and filed version. Opposite party No.2 also filed version. But opposite party No.3 did not appear before the Commission after receiving the notice. Hence opposite party No.3 set exparte.
8. In their version, opposite party No.1 stated that the complaint is baseless and complainant has not approached this Commission with clean hands. They again stated that, they are the company who serves its customer and provide goods at the most competitive price and also provide most impeccable after sales service. If complainant approached the service centre of them with corrects facts, prompt service would have been provided. But complainant has instead preferred the present ill motivated complaint and hence, the complaint deserves dismissal on this ground alone.
9. They again stated that the alleged manufacturing defect of the product cannot be determined on the simple submissions of the complainant but needs a proper analysis test report to confirm the same. In the absence of any technical report on record the complaint deserves dismissal. They admitted that complainant had purchased Samsung mobile phone through online on 03/07/2020 for Rs. 17,499/- and the unit has one year warranty from the date of manufacture. But they denied the allegation of complainant that, he happened to purchase the hand set on the influence of advertisement from the company and while using the phone he could see colour variation on the display is hereby disputed that would require strict proof of evidence.
10. They again denied the averment of the complainant that there was unfair trade practice, deficiency in service on the part of opposite parties and no improper usage was done by the complainant. They again stated that the allegation in the complaint that the damage might have been caused to the above mobile phone from the part of opposite party No.2 may be true. But that have to be proved by the complainant himself. They denied the other allegations levelled by complainant against them.
11. As per the records of the company, it is true that complainant had purchased the mobile phone through online which is manufactured by opposite party No.1. On 10/08/2020, the unit was brought before the service centre in connection with the issue of display discolouration. The said complaint was duly registered vide job card and after examination, it was found that there was scratches on the display that the unit was physically damaged and that was happened due to external reason. It was caused due to careless use by the complainant and not due to any internal reason which is a warranty void condition that has too not caused due to any manufacturing defect or otherwise. The reported defect is physical damage happened on the part of the complainant himself, the same can be repaired only on chargeable basis. But complainant was not ready to repair it on chargeable basis, but demanding for refund under the false belief that unit has manufacturing defect.
12. They again stated that the complaint occurred is not under warranty limit, but the company ready to do the chargeable service. But complainant demanding replace of the mobile phone and seeking unlawful compensation from the company. Samsung provides warranty only for technical issues and not for damage happened on the part of the customer. As per the terms of the warranty policy, only issues arising within the scope of warranty will be repaired free of cost. There are no manufacturing defects in the unit. Hence complaint may be dismissed.
13. In their version, opposite party No.2 stated that, they manage the e-commerce market place that means www.amazon.in where independent third party sellers list their products for sale. Any independent third party seller is free to list any product for sale and any buyer is free to choose and order any product from any independent third party seller selling that product on the e-commerce market place. There is no influence or interference by them in the said process. They again stated that complainant is not a consumer of Amazon, hence does not have locus standi to file a complaint against them. Complainant has not bought any goods from opposite party No.2 nor has the complainant paid any amount as consideration to them. Opposite party No.2 merely operates an e-commerce market place and has no control over the independent transaction executed by and between seller and buyer. They have no part to play in the sales, manufacture and service of the product listed on its e-commerce market place. The tax invoice against the order was issued by the independent third party seller that means Savex Technologies Private Limited in favour of the complainant herein.
14. They again stated that complainant has made baseless allegation pertaining to defects in the product without corroborating and substantiating his claims. As per section 38 (2) (c) of Consumer Protection Act 2019 and expert opinion should be called for in such cases and it is mandatory requirement where allegations relating to defects and manufacturing defects are alleged. No such expert opinion has been call for in the present case. They again stated that they merely operate an e-commerce, market place and has no control over the independent transaction executed by and between the seller and buyer. Hence complaint may be dismissed.
15. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 to A6. Ext.A1 is the copy of online payment receipt dated 03/07/2020, Ext.A2 is the copy of the warranty details shown in the website of opposite party No.2, Ext.A3 is the copy of warranty card, Ext.A4 is the reply letter sent by opposite party No.1 to complainant, Ext. A5 is the copy of estimate for Rs. 4937.31/- given by opposite party No.3 to complainant, Ext. A6 is the copy of job card given by opposite party No.3 to complainant. Thereafter opposite party No.1 filed affidavit and the documents they filed were marked as Ext. B1 to B4. Exit B1 is the copy of power of attorney, Ext. B2 is the original job card given by opposite party No.3 to complainant, Ext.B3 is the warranty card, Ext.B4 is the image of the mobile phone (3 Nos.). But opposite party No.2 did not file affidavit and documents.
16. Heard complainant and opposite party No.1. Perused affidavits and documents. The following points arise for consideration:-
- Whether there is any manufacturing defect?
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost
17. Point No.1 and 2:-
Case of the complainant is that, the mobile phone worth Rs. 17,499/- bought byhim through Amazon website got damaged within few days of its use. Opposite party No.3 demanded Rs. 4,997/- for repairing the mobile phone during the warranty period. But opposite party No.1 stated that there were scratches on the display that the unit was physically damaged and that was happened due to external reason. It is a warranty void condition, hence the same can be repaired only on chargeable basis. They again stated that they provide warranty only for technical issues and not for damage happened on the part of the customer.
18. As per Ext. A1 documents filed by complainant it is clear that, he had ordered one mobile phone on 24/06/2020 and it was delivered on 03/07/2020. As per Ext. A2 document the above handset had one year manufacturer warranty for device and 6 months manufacturer warranty for in box accessories including batteries from the date of purchase. As per Ext. A3 the warranty card of the above mobile phone clearly stated that mobile phone had 12 months warranty. As per Ext. A5, the estimate given by the opposite party No.3 to complainant dated 13/08/2020 clearly shows that opposite party No.3 gave an estimate of Rs. 4,937.31/- as repairing charge. In that document date of purchase mentioned as 04/07/2020. As per Ext. A6 dated 24/08/2020, there mentioned the request date as 10/08/2020, purchase date of the mobile phone was 04/07/2020 and the defect description was “display colour”. As per the above documents, it is clear that the mobile phone mentioned in the complaint which was ordered on 24/06/2020 and which was delivered on 03/07/2020 to complainant and the colour variation in the screen was found within few days of its purchase and complainant entrusted for repair to opposite party No.3 service centre on 10/08/2020. That means the newly purchased mobile phone had problems within one month from the date of purchase of the mobile phone by the complainant. On 13/08/2020, opposite party demanded Rs. 4997.31/- for repairing the mobile phone during the warranty period. In Ext. A3, the warranty card filed by complainant and in Ext.B3 the same warranty card filed by opposite party No.1 ,there mentioned that the above mobile phone handset had 12 months warranty from the date of purchase of the product. The mobile phone of complainant became defective within one month of its purchase. That means during the warranty period.
19. Another contention of complainant is that the above mobile phone had manufacturing defect. But opposite parties stated that the alleged defect cannot be determined on the simple submission of the complainant and needs a proper analysis test report to confirm the same. They again stated that complainant has miserably failed to prove the alleged manufacturing or technical fault neither placed on record any analysis test report for the perusal of this Commission and in the absence of any technical report on record the complaint deserves, dismissal on that ground. But we are on the opinion that the above mobile phone showed defects like discolouration within one month of its purchase. The colour variation in the screen of the handset was not due to the act of complainant. It is a manufacturing defect. It is admitted by opposite party also. In Ext.A6 document, in the column the defect description noted as display colour. Ext.A6 is given by opposite party No.3 to complainant on 24/08/2020. In that document the request date was 10/08/2020.
In that document no other defect was mentioned by opposite party No.3, that means that defect was inherent. So there is no need for a report of technical expert. The document given by opposite party No.3 to complainant itself shows that, there was colour variation in the screen of the handset. So it is a manufacturing defect. It is the duty of opposite party No.1 to prove before the Commission that the defect caused to the mobile phone is not due to the manufacturing defect.
20. In Ext.B2 produced by opposite party No.1 there also mentioned that the defect description was display colour and complainant requested for repair on 10/08/2020 that means within one month of purchase of the handset. From Ext.B4 series documents produced by opposite party No.1 the photographs of one mobile phone, we have not got any idea about the damage. Opposite party No.1 can summon an expert, who repaired the above mentioned phone and mentioned the above defects caused due to impact/external force. They can summon that person himself to report about the damage caused due to impact or external force which was a warranty void condition. We are unable to evaluate the picture in Ext.B4 series documents. We do not know the picture of the handset in Ext.B4 documents is the same picture of mobile phone of complainant or not. Moreover opposite party No.1 was failed to prove their contention regarding the careless use of the mobile phone by the complainant.
21. As per documents especially warranty card given by opposite party to complainant clearly shows that the above phone had 12 months warranty from the date of purchase. It is the duty of opposite party No.1 and as per the direction of opposite party No.1, opposite party No.2 should repair the mobile phone of complainant free of cost because the defect happened during the warranty period.
Another contention of opposite party No.1 is that the complainant purchased the handset through Amazon and the unit was delivered to them for service and hence there may be a chance to cause physical damage to the handset on the part of opposite party No.2 as alleged by the complainant may be true if no improper use was done by the complainant. From that contention we are on the opinion that opposite party No.1 had no idea about the physical damage happened to the handset. In the first Paragraphs they stated that, the mobile phone got damaged due to the improper use of complainant or the damage caused due to the impact/ external force. From that points it is clear that opposite party No.1 was in confusion about the damage caused to the mobile phone of complainant. Opposite party No.1 was failed to prove that the damage of the handset was happened from the part of complainant. It is their duty to prove the case by using a technical expert, who had given the Ext.B4 series photographs after opening the phone. But we are unable to identify Ext.B4 series photographs are the same photographs of complainant’s mobile phone. They failed to prove their contention regarding the improper use by complainant which caused colour variation in the screen.
22. Another contention of complainant is that when opposite party No.3 returned back the mobile phone to complainant, he found a scratch having one inch length on the left side of the screen of mobile phone after repair. Complainant had mentioned this in his complaint and affidavit. That contention of complainant is believable. It is a clear deficiency of service from the side of opposite parties especially opposite party No.1 and 3. Opposite party No.2 should be vigilant about the products which are sold through their online platform. They are equally liable for the products purchased by complainant through their online platform which was manufactured by opposite party No.1 and repaired by opposite party No.3. Opposite party No.1 admitted that complainant had purchased a mobile phone through opposite party No.2 which was manufactured by them.
23. As per documents it is found that the above said mobile phone got damaged within one month of its purchase. As per documents it is clear that the above said mobile phone had 12 months warranty. Hence it is the duty of opposite parties to rectify the defect of the mobile phone free of cost during the warranty period. As per Ext.A4 the Senior Executive, customer experience of opposite party No.1 sent email to complainant and says that Samsung provides a free of cost repair during warranty period to ensure equated performance of your product. The warranty is considered void if the product is tampered within the warranty period or due to improper usage. But opposite parties failed to prove what was the improper use done by complainant in the mobile phone within one month after purchasing the same. Hence there is clear deficiency of service and unfair trade practice from the side of opposite parties. The above said mobile phone had manufacturing defects. n the complaint itself, complainant stated that there is a one inch long straight line is there in the left side of the screen of the mobile phone. It is the duty of opposite party No.1 to direct opposite party No.3 for repairing the mobile phone of complainant free of cost during the warranty period. During the warranty period opposite party No.3 demanded money for repairing the mobile phone. Hence all the opposite parties are jointly and severally liable to compensate complainant. There is clear deficiency of service and unfair trade practice from the side of opposite parties as alleged in the complaint by the complainant. Therefore complainant is entitled to get the cost of the mobile phone and he is also entitled to get a reasonable amount of compensation for the deficiency of service from the side of opposite parties and cost of the proceedings. Hence we allow this complaint holding that opposite parties are deficient in service.
24. Point No.3:-
We allow this complaint as follows:-
- The opposite parties are directed to refund Rs. 17,499/-(Rupees Seventeen thousand four hundred and ninety nine only) the cost of the mobile phone to the complainant and complainant is directed to returned back the defective mobile phone to opposite parties after payment made by opposite parties.
- The opposite parties are also directed to pay compensation of Rs. 15,000/- (Rupees Fifteen thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs.3000/-(Rupees Three thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 22nd day of December, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A6
Ext.A1 : Copy of online payment receipt dated 03/07/2020.
Ext.A2 : Copy of the warranty details shown in the website of opposite party No.2, Ext.A3 : Copy of warranty card.
Ext.A4 : Reply letter sent by opposite party No.1 to complainant.
Ext.A5 : Copy of estimate for Rs. 4937.31/- given by opposite party No.3 to
complainant.
Ext.A6 : Copy of job card given by opposite party No.3 to complainant.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B4.
Ext. B1 : Copy of power of attorney.
Ext. B2 : Original job card given by opposite party No.3 to complainant.
Ext.B3 : Warranty card.
Ext. B4 : Image of the mobile phone (3 Nos.).
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
