DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PALAKKAD
Dated this the 19th day of August 2022
Present : Sri.Vinay Menon V, President
: Smt.Vidya A, Member Date of filing: 06.09.2019
CC/223/2019
Jayendran P
S/o.Ramakrishnan,Mepadath House
Vaniyamkulam, Pulappatta : Complainant
Palakkad Dt.
(Party in person)
Vs
1. Samsung India Electronics Pvt. Ltd
Registered Address: 6th Floor, DLF Centre
Sansad Marg, New Delhi – 110 001
Rep. by its General Manager
2. The Manager : Opposite parties
Samsung Service Centre
Opp: Ottappalam Police Station
Ottappalam 679 101.
3. The Manager
Malabar Enterprices
CKP Tower, S M Junction, Shoranur
Palakkad.
(OP 1.Adv. Manimangalth Shameer Babu
OPs 2 & 3 Ex-Parte)
O R D E R
By Smt Vidya A, Member
Pleadings of the complainant in brief.
1. The Complainant purchased a Samsung A50 4/64 GB Black mobile phone from the 3rd opposite party’s shop on 21.03.2019 for an amount of Rs. 19,990/- including GST. First Opposite Party is the manufacturer of the mobile phone and 2nd opposite party is the service centre of Samsung.
Two months after the purchase of the mobile, the Complainant noticed that the mobile phone has a bend. At that time, the Complainant was working in Iran and so he could not inform this fact to the dealer and the manufacturer. Subsequently when he came to his native place during the first week of August 2019, the Complainant approached the 3rd opposite party and complained about the defect in the mobile phone. He advised him to approach the 2nd opposite party, the service centre of Samsung. Accordingly the complainant approached the 2nd opposite party and showed the defects in the phone. The service centre issued a receipt of acknowledgement of service request dated 20.08.2019 to the Complainant. They opined that in normal course the company would substitute a new mobile to the complainant instead of the old defective phone and advised him to wait for a week. After one week, the 2nd opposite party asked him to contact the 1st opposite party through customer care and accordingly he contacted them and the 1st opposite party replied that they cannot substitute with a new phone as there is no manufacturing defect in his phone. The 1st opposite party was not ready to admit the manufacturing defect and it amounts to violation of contract and unfair Trade Practice on the part of 1st opposite party.
The mobile phone is having manufacturing defect at the time of purchase itself and the complainant came to know about it only after 2 months of its purchase. The complainant suffered mental agony and financial loss by purchasing the defective phone.
The 1st opposite party violated the guarantee and warranty conditions and there is deficiency in service on the side of the opposite parties. So this complaint is filed for directing the first opposite party to replace the mobile phone with a new one or to return the price of the mobile phone amounting to Rs 20,000/- and to pay a compensation of Rs 30,000/- for the mental agony and financial loss suffered by the complainant together with cost of this litigation.
2. Complaint was admitted and notices were issued to the opposite parties. Even after the receipt of notice from the Forum, opposite parties 2 & 3 did not appear and so they were set ex-parte. 1st opposite party appeared and filed their version.
3. The main contentions in the version of 1st opposite party
The 1st opposite party company serves its customers and provide goods at the most competitive price and also provide impeccable after sales service. In case any after sale service/quality issue is brought to notice of the opposite party/service centre, as a policy matter, the same is immediately corrected. If the complainant had approached the service centre of the opposite party rightfully with correct facts, prompt service would have been provided.
The Complainant alleges manufacturing defect in the product. The complainant has failed to prove the manufacturing defect in the absence of any technical report. The complaint is ill-motivated attempt to obtain unfair advantage and it is to be dismissed.
The averments in the complaint are not fully correct. It is admitted that the complainant purchased a mobile phone from the 3rd opposite party dealer on 21.03.2019 and he approached the service centre on 20.08.2019 with a complaint of LCD bend. The said complaint was duly registered by the service centre and the complainant was given an estimate to repair the unit since the LCD was damaged due to the mishandling by the complainant himself and not due to the manufacturing defect as alleged.
The complainant was not ready to pay charges for the service, and demanded free service or replacement of the unit which was not acceptable to the opposite party. The hand set was damaged only due to the careless use by the complainant himself for which the company is unable to do any free of cost service as per the warranty terms. So the complainant is not entitled to get replacement or refund with compensation. There is no manufacturing defect for the mobile phone and there is no deficiency in service on the part of the opposite party.
As per the terms of the warranty policy, only issues arising during the warranty period will be done free of cost and all repairs outside the warranty period will be repaired only on chargeable basis. The complainant is not entitled to get any of the relief claimed in the complaint.
4. From the pleadings on both side, the following points arises for consideration
(1) Whether the complainant had succeeded in proving the manufacturing
defect in the mobile phone?
(2) Whether there is any deficiency in service/unfair Trade Practice on
the part of the opposite parties?.
(3) Whether the complainant is entitled to the reliefs claimed?
(4) If so, what is the relief as to cost and compensations?
5. Complainant filed chief affidavit and Ext A1 & A2 were marked. The
first opposite party filed chief affidavit and Ext B1 to B4 were marked
from their side. Evidence Closed. Heard both parties and taken for
orders.
When it was posted for orders, complainant filed an application IA 160/21 to reopen evidence and it was allowed. Then he filed IA 171/21 for the appointment for an expert Commissioner to find out the defects in the mobile phone and it was allowed. Inspection Team after inspecting the phone filed report. Evidence closed. Complainant filed argument notes and heard. Then the case was suo- moto re-opened for marking of Commission Report and the report of the Experts were marked as Ext C1.
Point No.1
6. It is admitted fact that the complainant purchased a mobile phone from the 3rd opposite party, dealer of Samsung on 21/03/2019 for an amount of Rs 19,990/-. Complainant produced the invoice for the purchase which is marked as Ext A1. The 1st opposite party also admits that the complainant approached their service centre, the 2nd opposite party with a complaint of LCD bend on 20.08.2019.
7. The opposite party’s contention is that their service centre registered the complaint and they have given an estimate to repair the unit. Since the LCD was damaged due to the mishandling by the complainant himself and not due to manufacturing defect as alleged by the complainant he is not entitled to service under warranty. They further contend that as per their warranty conditions (which is marked as Ext B4) misuse is not covered and the complainant has to pay charges for the repair which he was not willing to.
8. Complainant alleges manufacturing defect in the product at the time of purchase itself and claims replacement of the product with a new one or refund of the amount. In order to substantiate his contention, he filed an application for the appointment of an expert Commissioner to examine the mobile phone and it was allowed.
The inspection team who are the Head of the Department and 2 Trade Instructors of Electronics and communication Engineering Department, N.S.S College of Engineering, Palakkad, submitted their report in which they noted that.
1. Phone was checked and found working properly.
2. Total glass frame with display appears to be bent.
3. Other physical damages not observed.
So the report says that total glass frame with display appears to be bent and they concluded that “probability of being a manufacturing defect is high (reason for bend).
9. Even though 1st opposite party filed objection to the Commission Report stating that the experts has not concluded that the phone is having manufacturing defect but only opined that there is a chance, they did not take any steps to cross examine the experts and the report is marked without any objection.
Further there was no attempt on the part of the opposite party to prove their contention of misuse/improper use/carelessness of the complainant as reason for the bend. The opposite parties also admit that the complainant approached them with the complaint of LCD bent within 5 months of its purchase. In the absence of any cogent evidence to prove the improper/careless use by the complainant, we are inclined to accept the experts opinion of probability of manufacturing defect as the reason for the bend. The first point is decided accordingly.
Points 2 to 4 are considered together.
10. The bend in the mobile phone was noticed by the complainant within the warranty period itself and he approached the dealer (3rd opposite party) and service centre (2nd opposite party). But they did not repair it under warranty or replace it merely by stating that it happened due to the improper handling by the complainant. It is a deficiency in service on their part and they are liable to compensate the complainant for that.
11. Further the Retail Invoice issued by the 3rd opposite party contains the statement “Goods once sold will not be taken back ” which is against the G.O (P) No.60/07/FCS&CA dated 03.11.2017 and subsequently it was upheld by the Kerala State Consumer disputes Redressal Commission in Duty Free shop CIAL V Manohar & others. So the 3rd opposite party is liable for the Unfair Trade Practice for that.
The complainant would have suffered mental agony because of the defect in the newly purchased mobile phone and financial loss in expending money for its purchase and for the unnecessary litigation causing time and money loss. The opposite parties are jointly and severally liable to compensate the complainant for that.
So the complainant is entitled to get compensation for the Deficiency in service and Unfair Trade Practice on the part of the opposite parties.
In the result, the complaint is allowed.
1. We direct the opposite parties jointly and severally to refund
Rs.19,990/- being the cost of the mobile phone with interest at the
rate of 9% from the date of purchase 21.03.2019.
2. We further direct the opposite parties jointly and severely to pay
Rs.5000/- for their Deficiency in service and Rs.7500/- as
compensation for the mental agony suffered by the complainant and
Rs.10,000/ as cost of the litigation.
3.We direct the 3rd opposite party to pay Rs.5000/- for
the Unfair Trade Practice.
Even though in cases where manufacturing defects are alleged, a liability is to be cast upon the manufacturer alone, the fact remains that a purchase is made by reposing a trust upon the dealer. And further as the dealer and the manufacturer are in constant contacts by way of daily business transactions, the dealer is in a superior position to ventilate the grievance of complainant and those likely placed. Even if a compensation is ordered upon the dealer they can have the same indemnified from the manufacturer in the course of daily business transactions. Hence it is expedient in the interest of justice that a liability be cast upon the dealer as well.
The above amounts are to be paid within 45 days of receipt of this order, failing which the opposite parties are liable to give Rs.250/- as solatium per month or part thereof till the date of payment.
Once the order is complied with, the complainant is directed to return the defective phone.
Pronounced in the open court on this the 19th day of August 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya A Member.
APPENDIX
Exhibits marked on the side of complainant
Ext. A1 – Original invoice No. RI-5105 dated 21.03.2019 issued by 3rd Op.
Ext.A2 – Acknowledgement of service request dated 20.08.2019 issued by
2nd OP.
Ext.C1 – Inspection Report issued by Department of Electronics and Communication
Engineering, Palakkad.
Exhibits marked on the side of Opposite parties:
Ext.B1-Copy of power of Attorney.
Ext.B2- Acknowledgement of service request.
Ext-B3-Images of mobile.
Ext-B4- Samsung warranty card.
Witness examined from complainant’s side:- NIL
Witness examined from opposite party’s side:- NIL
Cost:Rs.10,000/- (Rupees Ten Thousand only).
