BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^TH DAY OF JULY 2022

ORDER

SRI.K.S.BILAGI, PRESIDENT

1. This  complaint is filed under section 35 of C.P.Act, 2019 against the Opposite parties for the following reliefs

1. Direct the opposite party to provide a replacement with a brand new Samsung Galaxy TAB A7(Wifi+LTE) which is defective and for which full amount of Rs.21,999/- (with Rs.2000/- cash back) was paid.
2. Direct the Opposite parties to compensate for deficiency in service, negligence and loss of time, loss of value for money, distress, mental agony, trauma, pain caused to the complainant  for no fault and not being able to use the TAB for the purpose it was bought for due to critical component battery issue which is not in a fully usable condition.
3. Direct the opposite parties to submit all the original recordings from April 27^th 2021 to date.
4. Direct the National Consumer Helpline to submit all the original recordings from July 16^th, 2021 to September 18^th, 2021.
5. That the complainant is also entitled to the cost of the present litigation.
6. such other reliefs as this Hon’ble Forum deems fit.

2.The case of the complainant in brief is as follows:

The complainant has purchased Samsung Galaxy TAB A7(Wifi+LTE) for Rs.21,999/-( With Rs.2000/- cash back ) on 13^th April 2021. The product was found defective. On 27.04.2021 the qualified engineers of technical team confirmed that the brand new TAB purchased is defective and it contains old battery. This fact was brought to the notice  of the OPs from time to time till September 2021,but OPs fail to rectify the defect. More ever the OP have furnished one side warranty which is against the customers. The act of the OPs means deficiency of service. Therefore, the complainant requests to give above directions to the OPs.

3. In response to the  notice, the OP-1 alone appeared through his counsel and filed version. Despite service of notice and copy of the complaint, OP-2 failed to appear before this Commission and OP-2 has been placed exparte.

4. The complainant has filed her affidavit evidence and relies on  documents annexed to the complaint. The area service manager has filed his affidavit evidence for OP-1 and relies on 03 documents.

5.          Heard the arguments,  Perused records and citations filed by advocate for OP-1.

7. The following points arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

8. Our answer to the above points are as under:

       Point No.1:- Negative

      Point no.2:- Negative

      Point No.3:-As per the final order.

REASONS

9. Point Nos.1 and 2:. These two points are co-related to each other. Therefore, these points have been taken for common discussion to avoid repetition of the discussions. At the 1^st instant, we would like to refer the proved and admitted facts before touching the controversy between the parties. The complainant and OP-1 have reiterated their respective contentions  in their affidavit evidence.

10. Annexure-1 produced with the complaint indicates that the complainant has purchased Samsung Galaxy TAB A7(Wifi+LTE) from OP-2 who is its authorized dealer by paying consideration amount of Rs.21,999/-.

11. The theory set up by the complainant that she obtained this product with cash back of Rs.2,000/- (Wifi+LTE facilities). Even though purchased Samsung Galaxy TAB A7 is not good, but OP-1 denies that the product sold with cash back of Rs.2,000/- and Wifi+LTE facilities. Under such circumstances, the initial burden lies on the  complainant prove that OPs promised her to provide Rs.2000/- cash back and she has purchased Samsung Galaxy TAB A7(Wifi+LTE facilities).

12. The complainant has not lead evidence to show that either the OPs promised to provide Rs.2000/- cash back facilities or other facilities. When complainant  not produced cogent evidence, it is difficult to accept  that she has purchased the product  with cash back of Rs.2,000/- and Wifi+LTE facilities .

13. The question arises that the complainant has purchased  Samsung Galaxy TAB A7(Wifi+LTE) and annexure-I invoice does not indicates that the above product sold to the complainant by OP-2 with(Wifi+LTE). where as OP-1 has produced annexure A3 brochure of  Galaxy TABA7. Even though the brochure indicates Galaxy TABA7(STE and Galaxy TABA7 Light(Wifi). The copy of invoice produced by the complainant does not indicate that Galaxy TABA7 with Wifi facility were sold to her. Therefore, this theory of the complainant also falls to the ground.

14. The complainant  alleges in the complaint as well as in the affidavit evidence that on 10.05.2021 within a month of purchase, remote diagnosis of the TAB was done  by the Samsung’s technical team of qualified engineers and confirmed that brand new tab purchased is defective and it contains old battery. The complainant relies  on annexute-17 & 18 to substantiate  her contentions. We carefully perused annexure-17 & 18. In the first line there is a reference that it appears that your battery is old one. The person according to the complainant who visited the house of the complainant and diagnosed old battery of the product was old. Even these annexures-17  & 18 are taken into consideration, it only indicates that it appears that battery is old. But, it does not mean that  really battery was old. If really battery was old as stated by the complainant, we fail to understand why the complainant has not taken this product with battery to the service centre of the OP to find out alleged defective. But the complainant was interested  to make only correspondence with the officials of OP-1 between May 2021 to September 2021. According to the complainant she met officials in the office of the OP-1 to find over the defective between 19.04.2021  to 13.07.2021. At this stage, it is relevant to refer Annexure-A2 produced  by the complainant i.e. warrant copy itself relevant to refer condition no.3 & 4 of the warranty. Condition no.3 of the warranty indicates that “Warranty can be  claimed only if the repair was carried out by the Samsung Authorized Service Centre”. Condition no.4  carry in service or in-home service applicability depends on the product category and Samsung policy. The complainant having knowledge of the warranty condition, but fails to take out the product to the authorized service centre. Instead of taking the product to the Samsung Service Centre, the complainant wasted much time either with e-mail correspondence or telephonic conservation. It is true that the complainant has made allegations, but does not indicates the battery was old. The complaint  cannot expect this commission to accept  that the  battery was old. The complainant without taking product for repair  to the Samsung authorized service centre. This commission could have to believed her theory of complainant  has taken the product with battery  to the Samsung service centre.  Therefore, the act of the complainant without taking the product to the Samsung service centre is not right in saying there is deficiency of service on the part of the OPs.

15. The warranty terms and conditions applicable to the both parties even in case of repair or replacement free of cost through out warranty period. It is the duty of the purchaser to take the product to Samsung service centre to ascertain whether repair was required  or replacement, existence of old battery and replacement of battery was required. The complainant has not done so.

16. The advocate for OP-1 rightly argued that the complainant without approaching the Samsung Service Centre has approached this commission and  for the reliefs and he also placed relys on following decisions in support of his arguments.

1. Judgment of Hon’ble Supreme Court in Civil Appeal no.5759/2009 in  SGS  India Ltd V/s Dolphin International  Ltd.,
2. 2006(4) SCC 644 in the matter between Maruthi Udhyog Ltd. V/s Sushil Kumar Gargotra and another
3. Order of Hon’ble State Commission of Karnataka in case no.857/2017.

17.  We carefully perused above judgments and orders. In 1^st decision, it was held that  it is duty of the complainant to prove deficiency of service. In the 2^nd decision it was held that warranty indicates to replace defective parts free of cost which is mentioned as per condition-3 of the warranty, it was  duty of the complainant  first to take the product to Samsung Authorized service centre  to get suggestion. But the complainant without approaching service centre   rushed to this commission. Therefore, the complainant is not  right in  claiming  that there is deficiency of service.

18. Hon’ble State Commission referring the decision of the Hon’ble National State Consumer commission  categorically held that one who makes on allegations prove if beyond any doubt. Even annexure-17 & 18 produced by the complainant along with complaint are taken into consideration. So called observation of the technician  is only assumption  that  it appears battery is old. The technician never opinioned that battery was really old. When the complainant came to know about the alleged battery was old, we fail to understand why she has not approached Samsung Authorized service centre for replacement of old battery. The complainant has approached this commission without producing the product to the any Samsung authorized service centre. The complainant utterly failed to prove deficiency of service on the part of the OPs. Therefore, the complainant is not entitled for any of the reliefs.   

19. It is relevant to note that prayer-c & d are in  interim nature. No application for such interim  relief is filed in this complaint. Therefore, the complainant is not entitled  to any of the reliefs.

20. Point no.3:-.  In view of the discussions on point no.1 & 2, complaint requires to be dismissed. Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without costs.
2. Furnish the copy of this order to both the parties, and return extra pleadings copies and documents

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^th  day of July, 2022)

Documents produced by the Complainant-PW.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :