By Sri. A.S. Subhagan, Member:-

            This is a complaint filed under section 35 of the Consumer Protection Act 2019.

            2.  Facts of the case in brief:-  The Complainant had purchased a Samsung Tablet through Amazon India online which is delivered on 30.07.2021. Complainant had activated the tablet on 31.07.2021.  After obtaining the book cover from Samsung, Complainant started to use the tablet on 13.08.2021 and after five minutes the display got off. Complainant had done trouble shooting recommended by Samsung by force restarting. But the display was not working.  As per the replacement policy of Samsung (DOA), if any defect is happened within first 14 days of activation of mobile/tab, replacement is to be done by Samsung. In this case the functional defect happened and identified on the 14^th day of activation (13.08.2021).  The problem is reported (The tablet is not switching on, the screen was blank) to the Samsung through online (Service request No.23 16105967 given by Samsung) and through telephone to customer care contact centre (Request Reference no. 1169626477 given by Samsung through SMS) on the 14^th day (13.08.2021) itself, as per the information indicated in the warranty card. In reply they requested to go to the Samsung service center Insight mobiles, Sulthan Bathery, for the verification of the complaint.  But, on that day, Complainant was on official University Exam Duty till 5 pm at Governmentt Engineering College, Wayanad, which is more than 50 kms from the nearby service center and it was impossible to reach there in time on the same day. Also there were no enough public transport due to covid19 related issues. On the next day itself, the Complainant handed over the Tablet with necessary documents to the Samsung service center-Insight mobiles, Sulthan Bathery. After inspection at the service center, they informed the Complainant that the problem is blank display and display is to be changed.  Complainant requested them to replace the tablet itself as per the 14^th day replacement policy of Samsung, as Complainant had already registered the complaint on 14^th day itself through online and over telephone. But they informed the Complainant that they are not able to do the replacement and it was to be done from Samsung directly. They instructed the Complainant to contact Samsung directly for replacement. At the same moment, Complainant telephoned Samsung customer care executive and discussed the matter with service center. Executive informed the Complainant that they would consider the replacement request and necessary arrangement would be done from their part. They advised to give the tablet to the service center. Then Insight mobiles, Sulthan Bathery gave the Complainant an acknowledgement of service request (with bill no. 4330225286 with defect description as Blank display, after keeping the tablet and accessories with them. Upon the advice of Samsung service center and customer care executive, Complainant sent an email to Samsung support with detailed description of the difficulties that Complainant had faced, on 14.08.2021 itself.  But no reply was obtained from them except the acknowledgment of the mail and stating that it was informed to concerned section.  After that Complainant had phoned on daily basis to the customer care centre. On every call they informed that their supervisor would contact the Complainant within one hour, but nothing happened. When Complainant had made a call on 18.08.2021 the executive informed the Complainant that they would take steps to replace the tab. But, when Complainant had made a call on next day, they connected to a supervisor for the first time and he informed the Complainant that they would not replace the tab saying that Complainant had not produced the tab in the service centre within 14 day limit. They informed this only after 7 days of request. Feeling aggrieved by this decision, Complainant had sent an email to Service head, as mentioned in their website on 23.08.2021 and reminder on 25.08.2021. After a couple of days somebody from Samsung head quarters called-me and informed they are not ready to replace the tab. They insisted the Complainant to repair the tab and take back the same from service centre.  Since three weeks were already over and the Complainant and his students were in trouble as students requested to take regular online classes (due to Covid 19 restrictions) using touch pen devices (without touch pen device the online presentation of Engineering Mathematics classes were not effective), the Complainant was forced to receive the refurbished tab from the service centre, as there were no option, when thought from the side of the students.  On 11.09.2021 Complainant had sent an email to Samsung CEO through their website, requesting to resolve the issue by replacing the tablet at the earliest and to settle the grievances.  After a few days, Mr. Kausik Krishnan from Samsung contacted the Complainant. After several days of communications he admitted the issue and offered me an extended warranty of 6 months.  But the Complainant informed him that as per the conditions of Samsung they were responsible for the replacement of the product as the complaint was happened within 14 days of activation. Complainant had requested him to take necessary steps to replace the product.  Again he sent an email with an offer of extended warranty of 12 months.  This offer was also not acceptable to Complainant since as per the conditions, Samsung has to replace the product.  After that, Complainant had not received any communication from Samsung.  Since Samsung did not replace the tab even though the complaint was happened within the replacement period of 14 days which is evident from the online registration of complaint in the Samsung website and phone call registration, it is clear that Samsung has done fraud practices. So, Complainant demand the following compensation from Samsung

A) Urgent replacement of the tab

B) Compensation of Rs.10000/- for the mental pain and agony suffered    

     by the Complainant for their fraud practice

C) An amount of Rs.5,000/- towards the expenses in filing the complaint

    and related matters.

            3.  Summons were served upon the Opposite Parties to appear before the Commission.  Opposite Party No.1 appeared and filed version, the contents of which are as follows:- The content that the complaint had purchased a Samsung Galaxy TAB from Amazon online is denied by this Opposite Party Instead the purchase bill shows that the product was purchased from One Health & Happiness Private Ltd through online platform of FLIPKART. Regarding the purchase of the unit, the version of the complainant does not match with the invoice. Since this answering, Opposite Party is not privy to the communications took place between the complainant and the Opposite Party No.2, it is invariable to array the seller as a necessary party to this complaint.  It is impertinent to connect the manufacturer to the said issue and is in bad taste. This is a bizarre and grossly conspicuous attack on the manufacturer by the complainant. This type of dishonest approach should be nipped in the bud. The complainant has admitted that he was in receipt of the TAB on 30.07.2021. The 14 day’s return time exhausts on 12.08.2021. He puts forth some narratives to overcome his laps and laxity on his end. So the replacement option was already expired on 12.08.2021 Inspected internally ie not opened the TAB.  Display was required to be replaced and the service center people was ready to replace the display. But the customer was not agreed and took back the TAB.  Again the complainant visited the service center as per Bill No.4331104565 on 27.08.2021. His request was recorded and he was not ready for any repair and was adamant for a replacement of the TAB and this time also he had taken back the TAB.  The complainant visited the service center once again on 01-09-2021 vide Bill No.4331377998 and repaired on his request and the DISPLAY replaced and the unit was delivered.  On 12.09.2021, the customer again approached the service center and he was offered 6 months warranty escalation (extension) but he had not accepted the offer. Customer submitted his device at Service center on 16^th day of purchase, till that time unit came out from DOA period. Service center denied to replace the device as per company DOA guidelines.  Service center had replaced the DISPLAY and customer collected back from Service center, customer was agreeing for repair and signed on Job sheet as well unit is with customer and the working of the TAB was fine. In response of email offered 6 months extended warranty however, the complainant was not ready to accept the gesture It is specifically denied that the unit in question had replacement guarantee. The product does carry WARRANTY only which means product should be repaired free of cost up to the period of one year from the date of purchase if any trouble crops up. As the manufacturer of the product this OP has not meted out any kind of negligence, unfair trade practice or deficiency of service. It is submitted that the complainant has not suffered any kind of pain or mental agony due to any wrongdoing of the Opposite Party No.1. The complainant is not entitled for any kind of compensation whatsoever from the manufacturer. The concocted narrative in the complaint is twisted for his convenience. The Opposite Party No.1 is made a party with nefarious design for arm twisting for extortion of money and gaining sympathy of this Hon’ble Commission and therefore, hereby denied emphatically. The Opposite Party No.1 is not directly or vicariously liable for the inconvenience and the loss caused thereby to the complainant. There is absolutely no deficiency of service on the part of Opposite Party No.1 and hence the complaint is not maintainable.  It is therefore most respectfully prayed that no litigant should be allowed to take this Hon’ble Commission for a ride and also prayed that this Hon’ble Commission may graciously be pleased to dismiss the complaint in the facts and circumstances of the case along with imposing a heavy penalty on the complainant to demonstrate a lesson to such unscrupulous complainants in the interest of justice.

            4.  Chief affidavit was filed by the Complainant and Ext.A1 to A13 were marked from his side but objected by the Opposite Party No.1 as photocopies and the Complainant was examined as PW1.  Opposite Parties had no evidence to adduce.

            5.  On the basis of the complaint, version, documents marked, affidavit filed, oral evidence adduced by the Complainant and the arguments in hearing, Commission raised the following points for consideration.

1. Whether there has been any deficiency in service/unfair trade practice from the side of the Opposite Parties?
2. If so, relief and cost?

6.  Point No.1:-  The case of the Complainant is that he had purchased a Samsung tablet as mentioned in the complaint through Flipkart (In the complaint, it was stated that the Tablet was purchased through Amazon, which was later corrected as from Flipkart)  The Complainant activated the Tablet on 31.07.2021 but when the Complainant started to use the Tablet on 13.08.2021 the display got off and it was not working.  Complaint was registered in this regard to Samsung through online and through telephone to customer contact centre and the Complainant demanded replacement of the product as per warranty condition.  But the Opposite Party instead of replacing it repaired it and returned to the Complainant.  According to the Complainant, this is fraud/cheating and hence the Complainant says that he is eligible to get replacement of the product, compensation and cost of the complaint.  On a thorough prob into the matter, scrutinising the Exts.A1 to A13 marked from the side of the Complainant and the oral evidence adduced by the Complainant, the following facts are revealed.

1. The Complainant had purchased a SAMSUNG Galaxy Tab from the  Opposite Parties through Flipkart as per Tax invoice dated 24.07.2021 (Ext.A3).
2. The Tab was delivered to the Complainant on 30.07.2021 and it was activated on 31.07.2021 which was not objected by the Opposite Parties.
3. The Complainant when started to use that Tablet on 13.08.2021, the display got off and was not working which was reported online to the Opposite Parties
4. The problem was reported to SAMSUNG through online on the 14^th day of activation ie on 13.08.2021, which is evident from Ext.A1.
5. Afterwards, many communications are seen made by the Complainant with Opposite Party No.1 and Opposite Party no.2 but the Opposite Parties had not replaced the defective Tab, yet.
6. As per the terms and conditions shown in respect of Defective Product received, the Opposite Parties are bound to replace it as stipulated by the Opposite Parties in Ext.A7 which shows that “In case the product is not working upon box opening or within 14 days from the date of phone activation, visit Samsung Authorized Service Centre with the product, ie original brand box, all inbox accessories and invoice” of the product if certified by the Service Centre as DOA (Dead on Arrival) in compliance with Samsung’s DOA terms and warranty policy.

            7. But instead of replacing the defective Tablet the Opposite Party No.1 offered ‘12’months extended warranty.  This offer from the part of Opposite Party No.1 itself shows that the product was a damaged one, otherwise they would not offer extended warranty.

            8.  In the version of Opposite Party No.1 and during argument, the contention raised by the Counsel for the Opposite Parties, was that they could not replace the product stating that the product could be replaced if it was returned before 14 days of its activation and added that in the present case the Complainant had returned the product 14 days after its activation and hence it could not be replaced.  But in their own condition It has been stated that “in case the product is not working upon box opening or “within” 14 days from the date of phone activation replacement will be re-shipped to the customer subject to product availability within 10 working days.   Here, the Tablet is said to be activated on 31.07.2021 and the complaint was registered by the Complainant on 13.08.2021.  If both the dates ie, the date of activation (31.07.2021) and the date of reporting complaint are also included in calculation, even then the total days come only to 14 days. “within” fourteen days is the condition, and so, the Complainant is at liberty and has the right to lodge the complaint even on the 14^th day.  But, if the condition was “before” 14 days the situation should be different.  So from the above discussion, it is seen that the argument of the Counsel for the Opposite Parties and the contention of Opposite Parties that they could not replace the TAB as the Complainant had not reported and returned the product within fourteen days is not sustaining and hence cannot be admitted.

            9.  Deviating from and violating the stipulated condition and thereby denying replacement of the defective product by the service provider/manufacturer is deficiency in service/unfair trade practice.  So, in the instant case, there has been deficiency in service/unfair trade practice from the part of the Opposite Parties.  If there is a specific condition as to the replacement of a defective product within a stipulated time, there is no need to prove any manufacturing defect if that condition is fulfilled.  Denial of replacement of a defective product contenting that the product is being used by the Complainant is not be considered as a sustaining defence but it shall be only for the purpose of escaping from the legal responsibility of the Opposite Parties.  The Complainant in oral examination has deposed that “Flipkart s\ tIkn I£n tNÀ¡mXncp¶Xv AhÀ Manufacturer AÃmXncp¶Xp sIm­mWv.   Manufacturing defect prove sN¿p¶Xn\v tImSXn aptJ\ \S]Sn kzoIcn¨ncp¶nÃ.  company bpsS service Centre Xs¶  complaint identify sN¿pIbpw  receipt \ÂIpIbpw sNbvXXn\memWv aäv \S]Sn kzoIcn¡mXncp¶Xv”.  So, Point No.1 is proved against the Opposite Parties.

            10.  Point No.2:-  As Point No.1 is proved in favour of the Complainant, they are entitled for the relief claimed in the complaint.

In the result, the complaint is allowed and the Opposite Party No.1 being the manufacturer is directed to

1. Replace the defective Tablet with a new one with good working condition of same brand
2. Pay compensation of Rs.10,000/- (Rupees Ten Thousand Only) for deficiency in service/unfair trade practice and for mental agony jointly and severally by Opposite Party No.1 and Opposite Party No.2 and
3. Pay Rs.5,000/- (Rupees Five Thousand Only) towards cost of this complaint jointly and severally by Opposite Party No.1 and Opposite Party No.2 and

The product shall be replaced by Opposite Party No.1 and the above amounts shall be paid by the Opposite Party No.1 and Opposite Party No.2  to the Complainant within one month from the date of this Order, failing which the amount will carry interest @ 9% per annum.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 29^th day of December 2023.

Date of Filing:-07.01.2022.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Subin. P. Joseph.                                        Teacher.

Witness for the Opposite Parties:-

                        Nil.

Exhibits for the Complainant:-

A1.                  Copy of Track Repair Status.

A2.                  Copy of SMS.                                              

A3.                  Copy of Tax Invoice.                                                          Dt:24.07.2021.

A4.                  Copy of Acknowledgment of Service Request.          Dt:14.08.2021.

A5.                  Copy of Email.                                                                     Dt:22.09.2021.

A6.                  Copy of Email.                                                                     Dt:29.09.2021.

A7.                  Copy of Terms and conditions.

A8.                  Copy of Email.                                                                     Dt:18.08.2021

A9.                  Copy of Email.                                                                     Dt:25.08.2021

A10.               Copy of SMS.          

A11.               Printout from Flipkart Website.

A12.               Copy of Document  from Samsung account showing warranty details.

A13.               Memory Card.

Exhibits for the Opposite Parties:-

                        Nil.     

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                     Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-