Date of Filing 30.08.2023

                                                                                                             Date of Disposal: 15.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,(ICWA), BL.,                                                                    ……MEMBER-II

CC.No.84/2023

THIS FRIDAY, THE 15^th DAY OF DECEMBER 2023

Mr.K.Sathish Kumar,

S/o.Kuppusamy,

Residing at 2C, Jamal’s Palazzo,

47 Medavakkam Main Road,

Keelkattalai, Chennai 600 117.                                                              ......Complainant.

                                                                              //Vs//

1.Samsung India Electronics Private Limited,

   20-24 Floor Two Horizon Center,

   DLF Phase-V, Sector -43,

   Gurugram, Haryana 122 002.

2.Samsung India Electronics Private Limited,

    C/o.Proconnect Supply Chain Solutions Limited,

    Amirthalingeswara Ware Housing LLP,

    No.39, Ayilachery Village,

    No.40 Pudhukuppam Village,

    Alamathi, Thiruvallur

    Tamil Nadu 600 052.                                                                        ….opposite parties.

Counsel for the complainant                                            : M/s.B.Sharmila, Advocate.

Counsel for the opposite parties                                      :  M/s.P.Suresh, Advocate.

This complaint coming before us on various dates and finally on 12.12.2023 in the presence of M/s.B.Sharmila, counsel for the complainant and M/s.P.Suresh, counsel for the opposite parties and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in selling a defective product along with a prayer to replace the product with a new one and to pay a sum of Rs.2,00,000/- towards compensation for the mental agony caused to the complainant due to the deficiency in service on the part of the opposite parties with 24% interest per annum from the date of complaint till the date of realization.

Summary of facts culminating into complaint:-

2. Being dissatisfied by the product supplied by the opposite parties the present complaint was filed.

3. It was the case of the complainant that he decided to purchase a new refrigerator through Samsung portal under EPP Corporate Credentials in pursuance to the advertisements made in print media, electronic media etc. The complainant had placed an order through online portal on 12.06.2023 vide order No.1123828693 and Serial No.05H44PB500036 by way of obtaining a loan from ICICI Credit Card. The product was delivered on 15.06.2023.  Pursuant to the delivery of the product, the Service Engineer Mr.Venkatesan from Samsung visited the complainant’s residence on 17.06.2023 to install the product and demonstration.  During the time of installation, it was found that the Fridge Right door had dent on the exterior right side. The service Engineer could not do the installation with ease and the left side door was jammed and he could not open it as easily as it was supposed to open. It took him some time to figure out the reason for the block.  The glass rack separators on the left side were imperfectly packed which has led to the rack separator sliding down and getting stuck between the door and the body of the fridge.  The Engineer tried as hard as possible to put his hand between the gaps of the door and the body of the fridge to bring the rack out or push it back to the original place but the attempts were failed.  So, he tried to unscrew the entire door from the top and re-fix it.  He proceeded with the process to unscrew the door panel and fix it back.  Upon opening the jammed door, it was found the rack had slid down and knocked on the door and damaged the door with a deep dent on the inner side. Complainant immediately insisted the Service Engineer to raise return request to replace the faulty product.  At the time, the service engineer failed to hear the request and pacified the complainant.  It was submitted that if the complainant was not satisfied with the replaced door, he can raise a request for replacement of the entire product.  Complainant had asked multiple questions about the return policy and replacements process and for which he had not given any clue as himself was not aware about the details and he said that he would get back after going to office and consulting with his teams. On 21.06.2023 M.r.Vijayakumar from the opposite party had contacted the complainant stating that the replacement doors had arrived and that he would be coming to fix it.  Accordingly, the replacement doors arrived. Mr.Vijayakumar fixed the left door first.  Then when the right door was unboxed, it had multiple dents in side panel. Mr.Vijayakumar took back the door without fixing them.  He fixed back the old right door that was dismantled from fridge. Complainant received a message from Samsung that the installation service request has been completed successfully on 23.06.2023.  Hence the complainant immediately resorted to online support on 23.06.2023 for assistance as the staff who was cooperating with the complainant as far failed to support him further for either getting proper installation purpose or for replacement procedures. Complainant and his family members not only dissatisfied with the defective and damaged product but also with the poor customer service at opposite parties end.  The correction process of the defect had subsequently led to functional defect and there was no possible way to continue to use the product.  Complainant had faced huge monetary losses and hardships due to lethargic activity and unfair trade practice of the opposite parties. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to replace a new Refrigerator for the old defective refrigerator, to pay a sum of Rs.2,00,000/- towards compensation for the mental agony and hardship caused to the complainant due to the deficiency in service on the part of the opposite parties.

The crux of the defence put forth by the opposite parties:-

4. The opposite parties filed version disputing the complaint allegation contending interalia that this Hon’ble Commission has no jurisdiction to entertain this complaint since the 2^nd opposite party has no role to play in the transaction other than being a ware house of the 1^st opposite party. Assuming that the jurisdiction was fixed based on the complainant’s residential address even then this complaint ought not to have been filed before this Commission, but should have been filed before the appropriate Consumer Redressal Forum. The complainant has not made any complaint or allegation at the time of delivery of the product.  On 17.06.2023 the service Engineer attempted to install and to provide product demonstration. But it was found that the product which was delivered in good condition apparently has been tampered as the complainant had attempted to install the product and mishandled the same and damaged the product and therefore the right door was dented and freezer door was jammed and glass rack separator were not in proper place. Opposite parties Service Engineer refused to handle the product due to the aforesaid defects caused by the complainant.  However on the instigation and threat of the complainant the Service Engineer tried to install the same but as the complainant had caused serious damage to the product it was not possible to install the product. The complainant ought not to have accepted the delivery of an allegedly damaged product but should have returned the same. The 1^st opposite party has neither manufactured the defective product nor delivered a defective product and therefore the product purchased by the complainant does not suffer with any manufacturing defect.  The alleged issue of door not closing due to mishandling and the arrangement of racks was because of complainant’s own fault who had apparently attempted to install the refrigerator by himself. The said defect was identified by the service Engineer and thus the opposite party forthwith offered to repair the product and replace the dented door. However, the complainant refused to accept the same and insisted on replacing the entire product which is not permissible as per the terms of the warranty and the 1^st opposite party as acted with due diligence care and caution expected out of the 1^st opposite party.  The opposite party is not liable to pay the compensation of Rs.2,00,000/- for the deficiency of service and for the mental agony alleged to have been suffered by the complainant.  Thus they sought for the dismissal of the complaint.

5. On the side of complainants proof affidavit was filed and documents marked as Ex.A1 to Ex A6 were submitted. On the side of opposite parties 1 & 2 proof affidavit was filed and documents marked as Ex.B1 to Ex.B4 were submitted. 

Points for consideration:-

1.   Whether the present Consumer Commission has the territorial jurisdiction to entertain the complaint?

2. Whether the allegation as to delivery of the defective product by the 2^nd opposite party and manufactured by the 1^st opposite party has been successfully proved by the complainant by admissible evidence?

3. If so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Tax Invoice given by the 2^nd opposite party dated 12.06.2023 was marked as Ex.A1;
2. Online complaint raised by the complainant against the opposite parties dated 03.01.2023 was marked as Ex.A2;
3. Email communication exchanged between the complainant and the opposite parties was marked as Ex.A3;
4. Legal notice sent by the complainant along with acknowledgement card dated 13.07.2023 was marked as Ex.A4;
5. Photos of the product was marked as Ex.A5;
6. Reply sent by the 1^st opposite party to the complainant dated 15.09.2023 was marked as Ex.A6;

 The following documents were filed on the side of opposite parties 1 & 2 in support of their defence;

1) Warranty card was marked as Ex.B1;

2) Technical Report dated 13.06.2023 was marked as Ex.B2;

3) Customer Service Record Card dated 06.07.2023 was marked as Ex.B3;

4) Photo was marked as Ex.B4

6. The preliminary objection raised by the opposite parties jointly is that the complaint as filed before this Commission was without jurisdiction on the aspect of territorial jurisdiction.

7.  It could be seen from the complaint filed by the complainant that the 2^nd opposite party had issued the invoice dated 12.06.2023 and the place of business of the 2^nd opposite party is clearly mentioned as Samsung India Electronics Private Limited, C/o. Proconnect supply chain solutions limited, Amirthalingeswara ware housing LLP, No.39, Ayilachery Village, No.40 Pudhukuppam Village, Alamathi, Thiruvallur, Tamil Nadu 600 052.  Therefore as per section 34(2)(b) the complaint has been filed only in the appropriate Commission.  Further, when the purchase made was through online the issue of jurisdiction should not be construed strictly.  Thus relying on the place of supply as per Ex.A1 we hold that this Commission has territorial jurisdiction to entertain and try the complaint.  Thus this point is answered accordingly.

Point No.2:-

8. As per the written arguments filed by the complainant it was submitted that having good opinion about the opposite party’s brand had purchased a Refrigerator. But even at the time of installation the door was not in a proper state and could not be installed.  As per the Service Engineer’s advise, who came for installation the complainant accepted for replacement of the door alone.  However it did not work properly.  It is submitted that even in the reply notice filed as Ex.A6 the opposite party had accepted that their exist certain issues to be resolved and that they had offered it and sought for amicable solution which was not accepted by the complainant.  However, it is contended by the complainant that the opposite parties before this Commission has come up with a contrary version. Thus by submitting various citations the complainant sought for the complaint to be allowed as prayed for.

9. On the other hand the opposite parties filed written arguments with respect to the merits of the complaint stating that all the allegations with regard to the defects alleged at the time of installation was denied and it is stated that the product was delivered in a good conditions but as the complainant himself tried to install had tampered with the product which resulted in right door dent and freezer door jammed along with certain other issues regarding glass rack separator.  It is denied that the service Engineer pacified the complainant for replacement of the door alone.  Stating that as per the terms and conditions the product could not be replaced for the fault of complainant the opposite parties sought for the complaint to be dismissed.

10. The factum of the purchase of the Refrigerator by the complainant through online and delivery by the 2^nd opposite party was not denied by either of the parties. The 1^st opposite party being the manufacturer of the product also accepted the same.  In the said situation the only issue to be considered is whether the product at the time of delivery had some inherent manufacturing defects or not.  It is the case of the complainant that even at the time of installation on 17.06.2023 after 2 days of delivery i.e. 15.06.2023 Right Door of the Refrigerator had dent on the exterior right side and hence the Service Engineer could not do the installation with ease as the left side door i.e. freezer door jammed.  This defect was not denied by the opposite parties but it is their defence that the said defects occurred only due to mishandling done by the complainant himself as he tried to install the product.  At this juncture no prudent man would decide to install a product on his own when it has to be done by the Service Engineer related to the company that too complainant could not have mishandled the product to the stage of resulting damage to the product i.e. Right Door.  Hence the defence put forth by the opposite parties that it is only due to the complainant’s mishandling the damage was caused seems to be fictional / imaginary concocted only to avoid responsibility.  Further the complainant had produced Ex.A2 in proof of the grievance raised by him with the National Consumer Helpline about the faulty product wherein after several transactions the complaint was closed as customer demanded replacement and it was beyond policy. The proof of filing complaint with the opposite parties was filed as Ex.A3 dated 24.06.2023 wherein the Customer Experience Manager had acknowledged the complaint raised by the complainant. On June 2023 the Opposite party team had delivered a mail that the item was delivered on 13.06.2023 and the incident was reported on 23.06.2023  was not valid  as per the Samsung terms and conditions and hence request for return could not be entertained.  However, on 25.06.2023 the opposite parties service head had sent a mail stating that the complaint was already highlighted to the dedicated team and that the dedicated team would contact the complainant on 26.06.2023.  Further the photographs of the damaged product were filed also by the complainant.  After issuance of legal notice by the complainant on 13.07.2023 a reply was sent by the 1^st opposite party vide Ex.A6 stating that they had offered an amicable settlement/solution to the complainant but the same was not acceptable to the complainant.  Thus it is sufficiently and amply well established by the complainant that the product had some inherent manufacturing defects at the time of delivery by admissible evidence.

            11. We also could see that in Para 9 of the written version filed by both parties together is entirely contrary to what has been stated by them at para 6 with regard to warranty and replacement of the product which clearly amounted to unfair trade practice.  Further both the manufacturer and the Delivery Agent could not have same defence.  Thus the opposite parties could not contend that the warranty did not cover for replacement when it is specifically provided in the invoice. Further Ex.B2 clearly shows that REF and Freezer Door Dent is the repair required as issued by the technical support.  Under Ex.B3 it has been clearly mentioned that the defect detected by the Engineer was Freezer door and REF door dent. Thus on considering of evidence and pleadings on a whole we hold that the product delivered to the complainant was with some manufacturing defects.  Whether the same occurred at the time of manufacturing or at the time of delivery by the 2^nd opposite party was not raised before this Commission.

12. We also could see that in the invoice issued by the 2^nd opposite party there is a return policy wherein it has been stated that in case of any product failure or manufacturing defect, parties can choose to return the product as per return policy provided at Samsung.com.  Thus this Commission has no hesitation to hold that the online purchase/product delivered to the complainant suffers with some manufacturing defects which could not be resolved by the opposite party through their service Engineer.  In the facts and circumstances we hold that the complaint allegations as to deficiency in service against the opposite parties has been successfully proved by the complainant. This point is answered accordingly in favour of the complainant and as against the opposite parties.

Point No.3:-

13. In the result as we have held above that both the opposite parties had committed deficiency in service, we direct both of them jointly and severally liable to replace a new Refrigerator or in alternative to repay the sum of Rs.1,06,110/- with 6% interest from 12.06.2023 till realization along with compensation and litigation expenses to the complainant. This point is answered accordingly.

In the result, the complaint is partly allowed against the opposite parties1 & 2 directing them jointly and severally

a) To replace the new Refrigerator or in alternative to refund the sum of Rs.1,06,110/- (Rupees one lakh six thousand one hundred and ten only) being the cost of Refrigerator with 6% interest from 12.06.2023 till realization within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from 12.06.2023 till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 15^th day of December 2023.

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MEMBER-II                                    MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties:-

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  MEMBER-II                               MEMBER-I                                                      PRESIDENT