IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Tuesday the 22^nd   day of March, 2022.

                                      Filed on  31.12.2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt.P.R Sholy, B.A., LL.B (Member) In

CC/No.345/2020

between

Complainant:-                                                     Opposite parties:-

Sri.Rahul Rajan,                                              1.The C.E.O., Head Office

S/o Rajan, Nelpuraparambu,                                Samsung India Pvt.Ltd.,

Pazhayangadi, Purakkad PO.,                                  20^th to 24^th , Two Horizon  Centre

Ambalapuzha,                                                          Golf Course Road, SECTOR 43 DLF

Alappuzha -688 561.                                                TH-B, Gurgaon,

Ph:8907429376.                                                   Haryana – 122202.

(Rep.by Adv. Smt.Anu G . Thottappally)               

               2.The Proprietor,

                   Technotrade Retail Services,                                        

                    India Pvt.Ltd., Room No.A VII,

                    Basement Floor, Penta Menaka,

                    Ernakulam  682 031.   

                 3.The Service Manager,     

                     Samsung Service Centre,

                     14/166, 1^st floor, JP Tower,

                     VCSB Road, Alappuzha-688 001.

         (O.P. 1Rep. by Adv.Sri.P.S.Anaghan)             

        (O.P2 Rep.By.Adv.Sri.Betson P.Kunjappan)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019.

1.       Complainant’s case briefly stated is as follows:-

On 30.12.18 complainant purchased a Samsung N 96 Galaxy note 9 mobile phone for Rs.61,500/- from the 2^nd opposite party.  At the time of purchase manager and executives of the 2^nd opposite party assured that it is a good phone having no complaint.  The phone was manufactured by 1^st opposite party and the 3^rd opposite party is the service centre of the 1^st opposite party.  Complainant took an additional extended warranty by paying an amount of Rs.4,000/-.  During the warranty period on 26.11.2020 it was found that the back panel of the phone is bulging and scratches occurred in the display.  On 27.11.2020 the phone was handed over to the 3^rd opposite party for servicing.  After inspecting the phone it was informed that though it is within the warranty period they are unable to repair the same. 

2.       Complainant sent a mail to the Samsung authority and they also informed that it cannot be repaired inspite of covered by warranty.  Though complainant contacted Samsung authority over phone the complaint was not redressed.  Hence the complaint is filed either to replace the phone or in the alternative to get the value of the phone.  Complainant is also seeking an amount of Rs.1,50,000/- as compensation for deficiency in service. 

3.       1^st opposite party filed a version mainly contenting as follows:-

The present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed.  If some defects are noticed in the Samsung handset it will not automatically come within the manufacturing defect and there may be possibility for that defect due to mishandling, improper handling or any other reasons.  When the complainant raised complaint regarding battery and charging issues the service engineer inspected the handset and found damages in the handset which happened due to impact of some external forces, physical damages and failure of the complainant to take proper care of the set.  Since the damages occurred due to mishandling of the set if is outside warranty and the replacement/ repair of the said set shall be done on chargeable basis which was denied by the complainant.  Since there was no manufacturing defect this opposite party is not liable to rectify the same under free of cost.

4.       When the complainant lodged a complaint at the service centre of this opposite party proper services were provided. It was informed that since the damages occurred due to mishandling it is outside warranty. This opposite party is willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual.  There was no deficiency of service from the part of this opposite party and hence the complaint may be dismissed. 

5.       2^nd opposite party filed a version mainly contenting as follows:-

This opposite party is a private limited company engaged in the business of selling various electronic gadgets.  The allegation that the manager and staff of this opposite party induced the complainant to purchase the handset in question is totally false and untenable.  The staff of this opposite party would never induce or pursue any of its customers to purchase any particular mobile phone.  This opposite party is only a dealer of Samsung mobile phones manufactured by the 1^st opposite party.  This opposite party never undertakes any post sale services of any mobile phones of different brands sold out from its outlets.   This opposite party is not a necessary party.  Hence the complaint against this opposite party may be dismissed.

6.       3^rd opposite party remained exparte. 

In the light of the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service from the part of the opposite parties as alleged ?
2. Whether the complainant is entitled to get replacement of the mobile phone or in the alternative is entitled to realise an amount of Rs.61,500/- being the price of the phone as prayed for?
3. Whether the complainant is entitled to realise an amount of Rs.1,50,000/- as compensation on account of deficiency of service?
4. Reliefs and cost?

7.       Evidence in this case consists of the oral evidence of PW1 and Exts.A1to A6 from the side of the complainant and the oral evidence of RW1 and Ext.B1, B2 series and B3 from the side of the 1^st opposite party. 

8.      Point Nos.1 to 3

PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext.A1 to A6. 

9.       RW1 is the service technician at Alappuzha, authorized service center of the 1^st opposite party.  Ext.B1 acknowledgment of service was handed over to complainant on 27.11.2020.  The complaint was that the set is not getting on.  On inspection it was found that the back glass and display were broken by the bulging of battery.  When the set was opened it was noticed that it was serviced in some other centre which was not authorized service centre. Some gum was found in the back glass and display panel.  Ext.B2 series are the photographs of the same.  Since there was no warranty coverage Ext.B3 estimate was prepared and handed over to complainant.  Since physical damage was noticed it is not covered under warranty.

10.     PW1, the complainant on 30/12/2018 purchased a Samsung Galaxy Note  9 mobile phone for Rs. 61,500/- as per  Ext.A1 bill from the  2^nd opposite party.   1^st opposite party is the manufacturer of the  mobile phone and 3^rd opposite  party is the authorized service centre of 1^st opposite party. The product was having a warranty for one year and as per Ext. A6 on 8/12/2019 PW1 took an additional extended warranty  for   a further one year by paying an amount of Rs.4000/-. On 26/11/2020 ie, during the period of extended warranty the back panel of the mobile phone  bulged and  scratches were found in the display.  On 27/11/2020 it was entrusted with the 3^rd opposite party for repair and obtained Ext.A2 acknowledgment.  After about one week it was returned on a contention that the mobile is out of warranty and so it can be repaired only on payment.   Dissatisfied  with the same complainant contacted the 1^st opposite party  over email  but they also  reiterated the contention that it can be repaired only on payment since it is out of warranty.  Hence the complaint is filed for a direction to replace mobile phone or to return the price.  He is also seeking an amount of Rs.1,50,000/- as compensation for mental agony  and Rs. 25,000/- as cost.   3^rd opposite party the  service centre remained exparte.  1^st opposite party filed a detailed version claiming  that they are well reputed company  and it is having very large customer base.  In a nutsell it is contented that  the damages  found on the handset  happened due to  impact of  external force, physical damage due to failure of the  complainant  to take proper care of the set.    Hence according to them it is out of warranty and  so it can be repaired only on payment.  2^nd  opposite party filed a version  contending that they are only the retail sellers of 1^st opposite party and the 1^st opposite party  had appointed  service center directly and  any repair can be done through them. Hence according to them there was no deficiency of service from their part.  Complainant got examined as PW1 and  marked Ext.A1 to A6 series.  Service technician of the  1^st opposite party was examined as RW1 and Ext.B1, B2 series and B3 were marked.  The learned counsel appearing for the complainant filed a detailed argument note.

11.     The fact that PW1 purchased a Samsung mobile phone paying Rs. 61,500/-  from the 2^nd opposite party  which was manufactured by the 1^st opposite party  is not in dispute since it is proved by Ext.A1 tax invoice.  Admittedly the product is having  one year warranty  offered by the manufacturer.   Ext.A5 shows that on 18/12/2019 ie,  during   pendency  of one year warranty offered by the manufacturer complainant took an extended warranty for further period of  one year by paying an amount of Rs.4000/-.  Ext.A2 acknowledgment of  service request reveals that  the mobile became defective and on 27/11/2020 it was produced before the  authorized service centre for repair.  The defect description noted in Ext.A2  is battery/ no power ON/ Battery Bulging/ Back Glass broken/ Always.  The remark shown is  Data Important, Display Broken.  So the  case of PW1 that when he was using the mobile phone it became defective on 26/11/2020 and it  was produced before the authorized service centre   on the very next day ie, on 27/11/2020 is also proved by Ext.A2.   According to PW1 2^nd opposite party demanded  money to repair the mobile phone on  a contention that it is out of warranty.  As discussed earlier it was purchased on 30/12/2018 and  there was one year warranty offered by the manufacturer ie, up to 29/12/2019.  During the  pendency of 1^st year warranty complainant took extended warranty on 18/12/2019 for a further period of one year by paying an amount of Rs.4000/- which is revealed from Ext.A5.  Since  the date of Ext.A2 acknowledgment of service request is 27/11/2020 it is pellucid that the mobile became defective during the extended warranty period.

12.     2^nd opposite party though filed a version did not participate  in trial  by cross examining  PW1 or adducing any evidence.  During cross examination of PW1 it was contended that 1^st opposite party manufacturer  had no practice of giving extended warranty as online.  Hence  according to them since the  date of Ext.A2   is 27/11/2020 ie, after the one year warranty offered by the manufacturer complainant had to bear  the expenses for repair.   By examining RW1 the contention taken by the learned counsel appearing for the 1^st opposite party is that  the mobile phone had serviced  in some unauthorized service centre which was revealed from the glue found on the same. To substantiate such a contention Ext.B2 series  photographs were pressed into service.  It was also  pointed out that  since physical damage was noticed complainant is not entitled to get the mobile phone repaired under warranty.   First of all it is noticed that though   1^st opposite party filed a version  running into 9 pages, the contentions taken during cross examination of PW1 and  during the examination of RW1 are not finding a place in it.   The contention that 1^st opposite party  had no practice of issuing warranty online is not seen finding a place in the  version.  Similarly the contention that the product was serviced outside in some unauthorized service centre is also not  finding a place in the  version.   As held  by the Hon’ble Supreme Court in  Moran Mar Basselios Catholicos   Vs. T.P.Avira & Others. [1958 KLT 721 (SC) ].

           Civil P.C.1908, O.VI. R.7- Pleadings  - Parties cannot go outside the pleadings and set up a new case.

          “On the pleadings as they stand  and on the issues as they have been  framed it is not possible to permit the plaintiff to go outside the pleadings and set up a new case.”

 It was held by the Hon’ble High Court  in Elizabeth  Vs. Saramma ( 1984 KLT 606).

“Civil P.C, 1908, Order VI Rule 2, Order VIII Rules 2, 3 and 4 and Order XIV, Rule 1 – Object and requirements of pleadings and issues – Formal requirement when can be relaxed – No evidence can be looked into upon a plea never put forward.”

 It was held by the Hon’ble Supreme Court in Shyam Narayan Prasad  Vs. Krishna Prasad & Ors. (2018 7 SCC 646)

“ Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings.”

13.     So in the light of the above  judicial pronouncements  it can be safely concluded that since the plea of non issuance of extended warranty and the examination of the product  outside the authorized service centre is not pleaded,  1^st opposite party is  estopped from taking such a contention at the evidence stage.

14.     The cross examination of PW1 shows that  learned counsel appearing for the 1^st opposite party is taking  a contention that they have no practice of issuing extended warranty  through online. Complainant  has produced Ext.A5 dtd.18/12/2019 by which he paid Rs. 4000/- for taking one year extended warranty for samsung mobile phone.  It is seen issued from M/s  Savex Technologies Pvt. Ltd.  It is true that the signature of authorized signatory is  not seen in it. PW1 stated that he had  taken  the same online and so signature is not available.   If the 1^st opposite party claiming to be  the leading  manufacturer of   mobile phone is not having the practice of  issuing extended warranty  over mobile phone and some mal practice is being done by some  others it is for them to take up the matter before appropriate authorities and to get the practice stopped.   The poor customer cannot be blamed  that also at a later stage that  the extended warranty is not valid and they have no such practice. Hence we reject both the contentions taken by the  learned counsel appearing for the 1^st opposite party.  The evidence on records shows that the  mobile became defective during the  extended warranty period and so opposite parties are liable to repair the same especially when they have collected Rs. 4000/- for extended warranty as per Ext.A5 dtd. 18/12/2019.  It is true that 2^nd opposite party is the retailer but Pw1 has purchased the mobile phone through them and so they are also liable.  It is noticed that RW1 is the service technician of the authorized  service centre of 1^st opposite party at Alappuzha.  3^rd opposite party remained exparte and  without  filing any version RW1  was examined as a witness.  As rightly pointed out by the learned counsel appearing for the complainant in Ext.B1 the name of RW1 is not finding a place.  So it is not  known whether it was  RW1 who accepted the mobile phone for service.   From Ext.B3 it is seen that  an amount of Rs.22,790.77/- is required   for repair.

 15.      It is to be noted that as per Ext.A1 bill PW1 purchased the product by  spending an amount of Rs. 61,500/-.  If a person is purchasing a product by spending such huge amount  believing the quality  of product manufactured by the  opposite party they are liable to give services for the product if any defect occurs during warranty period.   One purchases  the product by spending huge amount experting that the product will have good quality but here in this case within two years of purchase the product became defective.  Opposite parties cannot escape from their liability on contentions which had not taken in the version.  In said circumstances we are of the opinion that complainant is entitled to get  the  mobile phone repaired,  since the defect occurred during the extended warranty period.    However PW1 is not entitled to exchange the product or get the amount of the same  since he had used the same for about two years defect free.

 16.    Complainant is seeking an amount of Rs.1,50,000/- as compensation for  deficiency in service.  The discussions made above reveals that PW1 purchased the product by  spending Rs. 61,500/- expecting good performance considering the reputation of the manufacturer M/s Samsung.   If the product became defective  within a  period of 2 years definitely one will have mental agony and  so he is  entitled for compensation  and  considering the facts of the case we are allowing an amount of Rs.20,000/-. These points are found accordingly.

17.     Point No.4

          In the result , complaint is allowed in part.

A)  Opposite parties are directed to repair  the Samsung Galaxi Note 9 mobile phone of PW1 shown in Ext A2 free of cost since  defect occurred  within the extended warranty. 

B) Complainant is allowed to realize an amount of Rs.20,000/- as compensation from the opposite parties.

C) Complainant is allowed to realize an amount of Rs. 3000/- as cost.

The order shall be complied within one month from the date of receipt of this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 22^nd      day of March, 2022.                                  

                                Sd/-Sri.S.Santhosh Kumar(President)

         Sd/-Smt.  Sholy.P.R (Member)

Appendix:-Evidence of the complainant:-

PW1                    -        Rahul Rajan (Complainant)

Ext.A1                -        Tax Invoice dtd. 30/12/2018   

Ext.A2                -        Acknowledgement of Service Request

Ext.A3                -        Extended Warranty Order Receipt

Ext.A4                -        E-mail copies of complaint registered

Ext.A5                -         Tax Invoices, Orders, Service Request  (Sub to Obj)

Ext.A6                -        Photographs of Mobile phone

Evidence of the opposite parties:-      

RW1                             -        Jinesh George(witness)

Ext.B1                 -        Acknowledgement of Service Request

Ext.B2series        -        Photographs of Mobile phone

Ext.B3                 -        copy of Estimate

                                                      ///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                  Assistant Registrar

Typed by:- Sa/-

Compared by:-