By Smt. PREETHI SIVARAMAN.C, MEMBER
1.The complaint in short is as follows:-
On 30/11/2021 complainant ordered one Galaxy Tablet S6 Lite worth Rs. 21,999/- through Samsung shop App. On 03/12/2021 opposite party No.2, the Delhivery delivered the product to complainant and he had received the product. On that day itself complainant opened the box and found that the screen of the Tab cracked. At once he informed this to opposite party No.1 through e-mail and they replied that they will enquire the matter.
2. On 09/12/2021, opposite party No.1 replied through e-mail to complainant that they already supplied a defect free tablet to complainant. So they are not responsible for the defects caused to complainant’s Tablet. Thereafter complainant filed a complaint before the online customer Consumer Forum and they replied to the complainant that they will check the complaint. But opposite parties did not do anything or they did not take any steps to change the cracked Tablet with a new one or they are not ready to refund the money to complainant .There is clear deficiency in service and unfair trade practice from the side of opposite parties. Hence this complaint.
3. The prayer of the complainant is that, he is entitled to get a full refund of Rs. 21,999/- the cost of the Galaxy Tab to him, Rs. 25,000/-as compensation on account of deficiency in service and unfair trade practice on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant and Rs. 5000/- as cost of the proceedings.
4 On admission of the complaint notice was issued to the opposite parties and notice served on them and they appeared before the Commission through their counsel and filed version.
5. In their version opposite party No.1 said that, they denied all the allegations raised by complainant against them except those which are admitted there under. Complaint is baseless devoid of any merits and without any cause of action. They contended that as a company it is their duty to serve its customer and provide goods at the most competitive price and also enable most impeccable after sales service . They admitted the Para 1 of the complaint that complainant had purchased Tablet through Samsung shop App for Rs.21,999/- which is manufactured by opposite party No.1 vide invoice number as mentioned in the complaint etc . The averment made in Para 2 of the complaint that when the box was opened it was found that the screen of the Tablet was broken and complainant reported the said issue with opposite party No1 and opposite party sent reply to complainant stating that, they delivered good products and hence was not responsible for the said issue etc also admitted by this opposite party. The averment made in Para 3 of the complaint that opposite party No.1 has sent mail stating that they sent the real unit that was not in broken condition etc are also admitted by them.
6. They again stated that the averment in the complaint are not fully correct and hence denied. It is submitted that as per the records of the company, it is true that complainant had purchased a Tablet through Samsung e-store which is manufactured by opposite party No.1. When the cover of the Tablet was opened by the complainant, it was found that the screen was broken. Thereafter complainant reported this opposite party No.1 and after verification opposite party No.1 decided to refund the price of the Tablet with a coupon, but that was rejected by the complainant and demanding compensation without any specific reason.
7. They again submitted that in this case after receiving the said complaint of screen broken, opposite party No.1 duly examined and found that the unit was in a working condition at that time when the same was packed and despatched. But unfortunately the display was broken during transit. Even then considering the good customer relation company informed the complainant to refund its price along with a happy coupon. But complainant rejected that proposal and demanding compensation in an illegal manner. There is no deficiency in service from the side of opposite party No.1. As per the terms of the warranty policy only issues arising within the scope of warranty will be repaired free of cost and all repairs which comes within the warranty period will be repaired free of cost. In this case opposite party No.1 was ready to refund the cost of the unit along with a coupon, but complainant filed a frivolous complaint. There is no manufacturing defect in the unit. Complainant is not entitled to get the Tablet replaced or refunded and complainant is not entitled to get any compensation or the cost of the proceedings.
8. In their version opposite party No.2 said that they do not admit any of the allegations made in the above complaint and subjects the complainant to strict proof. They are only the dealers of Samsung product and they are not involved in the manufacturing or the sale and they are not authorised to provide any guarantee, service or repair. They are being the authorised dealer sold a sealed and intact product to the complainant. Moreover the said product was not delivered to the complainant by opposite party No.2. Moreover they stated that they do not have any online Customer Consumer Forum as alleged by the complainant. They denied the allegation of complainant that complainant had allegedly incurred monitory and the mental agony due to the act of opposite party. They again stated that there is no genuine grievance against them by complainant. There is no deficiency of service from their side. Hence complaint may be dismissed.
9. In their version opposite party No.3 stated that complaint is not maintainable and they denied all the allegations levelled by complainant against them. They are consumer centric Company, they provided logistics support to numerous e-commerce companies/customers in pickup and delivery of their consignment as per their request. They act as merely a facilitator for ensuring transport of goods and in the instant case from the e-commerce company to the customer. Moreover they submitted that this complaint is liable to be dismissed due to mis-joinder of parties. They are neither a necessary party nor a proper party to the complaint. There is no cause of action against them in the present complaint. They again stated that the complainant does not fall within the ambit of the definition of the term consumer under Section 2(7) of the CP Act 2019. They again stated that, they upon the request received from its customers pickup the goods from its customers and delivers the same to the addressee as requested by the concerned customer. In this case also the product was duly delivered to the complainant as was received by them from the seller. Furthermore there is an affirmation by opposite party No.1 which is well indicated in the annexure to the complaint copy clearly conveying that in transit damage cannot occur as the packaging was full proof and robust enough Hence dismiss the complaint with cost.
10. In order to substantiate the case of the complainant, the P/A holder of complainant as per IA 704/2022 filed an affidavit in lieu of Chief examination and the documents she produced were marked as Ext. A1 to A3 series. Ext.A1 is the Power of Attorney (original) dated 17/10/2022 executed by complainant in favour of his mother. Ext. A2 is the copy of tax invoice of the Tablet made by Samsung Company worth Rs. 21,999/- given by opposite party No.2 to complainant on 30/11/2021. Ext.A3 series are the email communications between complainant and opposite parties regarding the damage caused to the Tablet. Thereafter opposite party No.1 also filed affidavit but no documents are marked. But opposite party No.2 and 3 did not file affidavit and documents. Hence they set exparte.
11. Heard complainant and opposite party No.1. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency in service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost.
12. Point No.1 and 2.
The case of the complainant is that he had ordered a Samsung galaxy S 6 lite on 30/11/2021 and he received the product on 03/12/2021 and when the package was opened it is found that screen of the Tablet is cracked and he informed this to opposite parties on the same day. But opposite parties did not take any steps to resolve the grievance of complainant. After filing version, opposite party No. 2 and 3 did not appear before the Commission and not filed affidavit and documents to prove their case. Opposite party No.1 filed affidavit and they admitted that, complainant had purchased the above said Tablet on that day through Samsung shop App which is manufactured by them. Immediately after delivery of the product it was found that the screen cracked and complainant reported this to them and they replied that they delivered good product and they are not responsible for the said issue.
13. Perused the affidavit and documents of complainant. As per Ext.A2, it is found that complainant had purchased the Samsung Galaxy Tab worth Rs 24,999/- which is manufactured by opposite party No.1, shipped by opposite party No.2 and delivered by opposite party No.3. In that document it is seen that complainant ordered the product on 30/11/2021 and the invoice date is 01/12/2021. As per complaint, complainant received the product on 03/12/2021. As per Ext. A3 series documents it is seen that, complainant informed about the damaged Tablet to opposite party No.1 on 03/12/2021 itself [Ext. A3 (a)]. As per Ext A3 (b) document dated 09/12/2021 after one week, opposite party No.1 replied for the mail sent by complainant to them. Through that e-mail, they made apology to complainant for the difficulties caused to him and they informed the complainant that after investigation they came to know that the despatched and delivered product to complainant is in intact condition after checking with logistics partner, packaging and deliveries scan. In Ext A3 (a) complainant stated that, he had sent the invoice and he attached the photographs of the damaged Tablet to opposite party No.1 for their reference. But they replied only on 09/12/2021 and they are not ready to repair or replace the product.
14. On 07/12/2021 complainant contacted opposite party No.1 for getting a solution for the problem and complainant asked for new product to opposite party. On that day opposite party replied for the e-mail sent by complainant to them and they again made apology for the difficulties and he said sorry to complainant. They said that they had forwarded the complaint to logistics team and wanted 8 to 12 days for investigation. On 09/12/2021 [Ext. A3 (c)] complainant again sent an email to opposite party No.1 and he again told to them that he received the product in damaged condition and he wanted to refund the amount than replacement of the damaged product. He again stated that he attached the photographs of the product and he stated that the photos sent by him to opposite party No.1 shows the state of the product when received by complainant. In Ext.A3 (d) dated 11/12/2021, opposite party No.1 replied that the carton box and retail box (white box) are specially designed. So that the main product is not damaged and they again stated that the damage occurred is not a transit damage.
15. On 13/12/2021 (Ext. A3 series), opposite party No.1 asked the complainant to approach the authorised service centre of them at the earliest to avail of service within warranty. There also they stated that if in case there was a damage of main product, he could have taken this forward. They again stated that since they have not encountered anything such, they would request the complainant to start using the device and directed to visit their service centre to check the authenticity of the product. In ExtA3 (f) and (g) complainant sent email to them to redress his grievance, but opposite party No.1 was not ready to repair or replace the product with a new one.
16. Opposites party No.2 already stated in their version that they are only the dealers of Samsung product and are not involved in the manufacturing of the product and they are not authorised to provide any guarantee, service or repair. Being the authorised dealer they sold a sealed and intact product to the complainant. Opposite party No.3 also stated that they acts merely as a facilitator for transportation of goods and in this case from the e-commerce company to the customer. They upon the request received from its customer pickup the goods from its customer and delivers to the same to the addressee as requested by the concerned customer. From the above statements made by opposite party No.2 and 3 we are on the opinion that they just washed off their hands from the liability. They did not file any document to prove that they take steps to resolve the problem by contacting with opposite party No.1. They even did not file any affidavit or documents to prove their case properly. Hence there is deficiency in service and unfair trade practice from the side of opposite party No.2 and 3.
17. When the Commission going through the affidavit filed by opposite party No.1, it is seen that the gross negligence on the part of opposite party No.1 in paragraph 9 and 10, which are very relevant in this case. The affidavit is filed by taking oath by the authorised representative of opposite party No.1 solemnly affirm and state on behalf of opposite party No.1 and they are submitting the true facts and circumstances best of their knowledge. But in that paragraph the true facts submitted by opposite party No1 were about another product which is also a deficiency in service and unfair trade practice. Opposite party No.1 is careless even in filing an affidavit before the Consumer Commission after taking oath.
18. In the email communications they always said sorry and they made apology to the complainant for the things happened. As per Ext. A3(a) and A3(c ) complainant clearly stated that he had attached the photographs of the cracked or damaged Tablet along with the e-mail sent by him to opposite party No.1. So it is clear that opposite party No.1 is very much aware about the damage caused to the Tablet of complainant which is manufactured by them. From that e-mail communication between complainant and opposite party No.1, it is clear that opposite party No.1 is very much aware about the cracked Tablet got by complainant which is manufactured by opposite party No.1 sold by opposite party No.2 and delivered by opposite party No.3. The first email of complainant to them was on 03/12/2021, which is the same date that complainant got the Tablet ordered by him. In Ext.A2 the amount of the Tablet mentioned as Rs. 24,999/-, but both parties agreed that the cost of the Tablet Rs. 21,999/-. So there is no question regarding the difference of amount.
19. Another contention of opposite party No.1 is that complainant did not approach the service centre of them and if he visited the service centre, prompt service would have been provided to complainant. But complainant instead of approaching the service centre filed this illmotivated complaint before the commission. But that contention of opposite party No.1 is ridiculous. While going through the complaint and documents, it is understood that complainant filed the complaint on 22/12/2021 and he received the product on 03/12/2021. As per documents it is seen that, he had sent e-mails to opposite party No.1 on almost every day. But opposite party No.1 intentionally tried to escape from the liability and they did not ready to solve the problem amicably. Hence it is the only solution for a consumer to approach the Consumer Commission for redressing the grievance of him. Complainant bought a Tablet worth Rs.21,999/- which is not a small amount for a genuine customer. Then he had no option other than to approach the Commission for redressing his grievance. Opposite party No.1 submitted in their version and affidavit that “even then considering the good customer relation company informed the complainant to refund its price along with a happy coupon.
But complainant rejected that proposal and demanding compensation in an illegal manner. But there is no documents filed by opposite party No.1 to prove their contention. There is no e-mail communications to prove the contentions raised by opposite party No.1
20. The alleged defect of the Tablet was caused not due to the act of complainant. When complainant opened the package it is seen that the Tablet was in a cracked condition. So there is no case for opposite parties that the alleged defect was caused due to the negligent act of complainant. They already convinced that the Tablet was in a cracked condition. Another contention of opposite party No.1 is that the alleged defect cannot be determined on the simpliciter submission of the complainant and needs a proper analysis test report to confirm the same. But we are on the opinion that the email communication between complainant and opposite party No.1 and the photographs already sent by complainant to them (as per Ext.A3 documents) clearly convince opposite party No.1 about the damage of the Tablet. That is why they sent the complaint of complainant for checking to the logistics team of them and packaging and delivery team. Complainant did not produce the Tablet before the Commission and not even photographs also did not produce before the Commission. But from the email communications, it is clear that the tablet was in a cracked condition and he informed this to opposite parties on the same day. Hence it is the duty of opposite party No.1 to refund the amount of the Tablet to complainant. Opposite party No.1 can produce the result got from their Logistics Department after checking the Tablet before the Commission. They can also produce the photographs of the Tablets in pre-delivered condition before the Commission to prove their case. But opposite party No.1 did not submit any document before the Commission.
21. Moreover it is not clear that from where the alleged defect caused. Hence all the opposite parties are jointly and severally liable to compensate the complainant. As per documents, complainant informed the defect of the Tablet immediately to opposite party No.1. They are the manufacturers of the said Tablet. So opposite party No.1 is liable to refund the amount of the Tablet to complainant. Hence the Commission finds that there is deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint. Hence we allow this complaint holding that opposite parties are deficient in service.
22. We allow this complaint as follows:-
- The opposite party No.1 is directed to refund Rs. 21,999/- (Rupees Twenty one thousand nine hundred and ninety nine only) the cost of the Tablet to the complainant and complainant is directed to return the damaged Tablet to any of the opposite parties after receiving the new product.
- The opposite parties are directed to pay compensation of Rs. 15,000/-(Rupees Fifteen thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties are also directed to pay Rs. 3000/-(Rupees Three thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 31st day of May, 2023.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A3
Ext.A1 : Power of Attorney (original) dated 17/10/2022 executed by complainant in
favour of his mother.
Ext. A2 : Copy of tax invoice of the Tablet made by Samsung Company worth Rs.
21,999/- given by opposite party No.2 to complainant on 30/11/2021.
Ext.A3 : Series are the email communications between complainant and opposite
parties regarding the damage caused to the Tablet.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
CPR
