Sikkim

East

cc/06/2020

Jorgay Namka - Complainant(s)

Versus

Samsung India - Opp.Party(s)

15 Jul 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GANGTOK, SIKKIM

 

 DATED: 15.07.2023

 

                          CONSUMER CASE NO. 6 OF 2020

 

1.    Shri Jorgay Namka,

    Son of Shri K.P. Namka,

    Resident of Sokeythang, Gangtok, Sikkim.

                                                …          COMPLAINANT.

 

Versus 

 

1.    M/s Samsung India,

    Through its President and CEO, 

    6th Floor, DLF Centre, Sansad Marg, New Delhi – 110001    

 

2.     M/s Samsung India Electronics Pvt. Ltd.,

    20th - 24th Floor, Two Horizon Centre, DLF Phase V,     Gurugram – 122202.

 

3.    Samsung Service Centre,

    Tibet road, Gangtok, Sikkim.

                               …      RESPONDENTS.

 

For complainant: Ms. Tashi Doma Sherpa, Learned Counsel.   

For Respondent no. 1-2: Ms. Lidya Pradhan, Learned Counsel. 

For Respondent no.3: Ex-parte.

 

CORAM:

1. K.W.Bhutia, President

2. Rohit Kumar Pradhan, Member

 

Per: K.W.Bhutia, President

 

O R D E R

    By this complaint filed under Section 35 of the Consumer Protection Act, 2019, the complainant seeks compensation for harassment and deficiency in services against the respondents. 

2.    The case of the complainant is that he had purchased a washing machine of Samsung Company bearing model no. WA80TALEC/XTL and serial no. WO615ZCPA05989L. On 17.08.2019, the said washing machine developed certain issues. Immediately, he called Samsung customer care number 1800407267864 after which he received a text message on his mobile number at 11.07 a.m. stating “Dear Customer, Service engineer BENU, mobile number 9737240574 has been assigned against registered Service order 4288638386”. When the service engineer did not contact him, he called ‘Benu’ on the given mobile number but it was not operational. He then sent his staff to locate Samsung service centre at Tadong and Tibet road, Gangtok and when she was unable to do so, he called Samsung customer care number 1800407267864 again on 21.08.2019. Another message was sent to his phone at 5.04 p.m. stating “Thank you for contacting Samsung. We hope your query was answered satisfactorily. For further reference kindly quote 1154784536 at 180040 – SAMSUNG (7267864)”. Again there was no response or assistance from the service centre despite making several calls and requests. 

3.    That with great difficulty, he got in touch with one ‘Ramesh’ of Samsung Service Centre, Tibet road, Gangtok and on his advice, the complainant sent pictures of his washing machine through WhatsApp on 28.08.2019. Ramesh told him that he will be sending somebody to his residence to fix the issue but nobody turned up. After 7 to 10 days thereafter, the complainant called Ramesh again who told him that another person named ‘Rajesh’ would be handling the issue. The complainant then called Rajesh who said that he would be visiting the complainant’s house but did not turn up despite the lapse of several weeks. Having no other option, the complainant then purchased another washing machine (LG company) on 21.09.2019. Due to the deficiency in service, he issued legal notice to the respondents on 03.10.2019 to which respondent no.2 sent a reply on 08.11.2019 stating that the “washing machine is already repaired on 11.08.2019 ….. the said washing machine was diagnosed by our Authorized Service Centre and repair is required in the same. However, since you are not ready for services, we request you to kindly share the invoice of the product so that issue can be resolved amicably”. Thereafter, the respondents did not contact the complainant leading to the filing of the present complaint praying for damages to the tune of ₹ 5,00,000 with 12% interest per annum for harassment, mental tension/agony, deficiency in service and cost. 

4.    Respondent no. 1 and 2 filed their written version stating that this Commission has no jurisdiction to entertain the present complaint as it is not a consumer dispute. The complainant has suppressed the support which he received from the respondents when the complaint was lodged at their service centre. The complaint was regarding no spin and power issues in the unit and after the service engineer inspected the washing machine, it was found that the wires had been damaged by rats. The damages in the unit was due to the failure of the complainant to take proper care which the service centre informed him. The complainant was also informed that as the unit was an old model, the required parts had to be ordered and once it is received at the service centre, replacement will be done accordingly but on chargeable basis since it was outside warranty. The complainant never even presented the invoice of washing machine but nevertheless extended the required support. There being no manufacturing defect in the said unit, the allegations against respondent no. 1 and 2 does not lie.

5.    Respondent no. 3 did not file their written version and was proceeded ex-parte.

6.    ISSUE FRAMED:

(1)    Whether the complaint is maintainable?

(2)    Whether there was any deficiency in the concerned Samsung washing machine purchased by the complainant?

(3)    Whether there has been any deficiency in service on the part of the respondents?

(4)    Whether the complainant is entitled to the reliefs prayed for by him?

7.    On the issue of maintainability, Learned Counsel for complainant would contend that the said Samsung washing machine was purchased by the complainant so as to save time in household chores (the complainant and his wife both being professionals). That he is a ‘consumer’ within the meaning of Section 2(7) of the Consumer Protection Act, 2019 and since proper services were not provided for repair despite assurances provided by the respondents, the complaint is maintainable.      Learned Counsel for respondent no. 1 and 2 would contend otherwise.

8.    Though the complainant has not produced any invoice to show when and where the said washing machine was purchased, there is no dispute that the washing machine is indeed Samsung make washing machine and according to respondent no.1 and 2, it is ‘old model’. The grievance of the complainant is that the respondents did not provide repair services for his washing machine despite assurance given on several occasions. Hence, the case of the complainant falls within the definition of ‘consumer’ under Section 2(7) (ii) of the Consumer Protection Act, 2019 which reads as follows: ‘consumer’ means any person who – (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Hence, he is a ‘consumer’ within the meaning of the Act of 2019. As there are disputable issues in the present case falling within the meaning of Section 2(8) of the Act of 2019, the complaint is maintainable. Issue no.1 is answered in affirmative.

9.    Issue no. 2 and 3 being inter-connected are taken up together. The complainant would depose in his evidence on affidavit (Exhibit-11) that his washing machine had developed certain problem due to which he called the Samsung customer care number 1800407267864 on two occasions but did not get any help. The complainant would reiterate the allegations made in the complaint that one Ramesh of Samsung Service Centre, Tibet road, Gangtok (respondent no.3) asked him to send pictures of his washing machine through WhatsApp on 28.08.2019. Ramesh assured that he will be sending somebody to his residence to fix the issue but nobody turned up and after 7 to 10 days, when he called Ramesh again he was told that another person (Rajesh) would be handling the issue. Rajesh did not visit his residence despite assuring him that he will do so to fix the issue due to which the complainant was constrained to purchase another washing machine of LG company.

10.    The documents filed by the complainant does not suggest any manufacturing defect on the said washing machine. On the contrary, the complainant would admit under cross-examination that “there is no expert opinion filed in the instant case to prove that there was a manufacturing defect in the said washing machine.” He would also admit that he has “not filed the original bill and the warranty card with regard to the washing machine of the OPs No. 1 & 2 to prove that the same was within warranty period from the date of purchase.”

11.    The witness for respondent no.1 and 2 namely Shri Sandeep Sahijwani would depose in his evidence on affidavit (Exhibit-R-1) that the wires of the complainant’s washing machine was bitten by rats and there was lack of proper care. The parts to be replaced was ordered as it was not readily available (being old model washing machine) and it was delivered in the service centre in November 2019. Under cross-examination, he would admit that respondent no.3 is the service centre of Samsung in Gangtok. He does not know who had visited the complainant’s house from Gangtok service centre. They have not filed any report or photograph to show that someone from the service centre had visited the complainant’s house and that the damage was due to rat bite.

12.    From the evidence of the complainant and RW-1 (supra), it is clear that there was no manufacturing defect in the said washing machine. However, there was deficiency in services of respondent no.3 which is clear from the statement of respondent no.1 and 2 themselves that service engineers from respondent no.3 had been deputed to the complainant’s house and the communications filed by the complainant (Exhibit-1, 2, 3, 9 and 10). If this be so, it was incumbent upon respondent no.3 to have provided proper service to the complainant by repairing the washing machine. As it was not done so, respondent no.3 (who is located within Gangtok) will be liable for deficiency in services particularly when the complainant has not sought for free services.

13.    In view of the above, issue no.2, i.e. whether there was any deficiency in the concerned Samsung washing machine purchased by the complainant is answered in negative. Issue no.3, i.e. whether there has been any deficiency in service on the part of the respondents is answered in affirmative.

RELIEF:

14.    In view of our findings above, issue no.4 is also answered in affirmative. The complainant is entitled to the following relief:-

(i)    Respondent no.3 shall pay to the complainant a sum of ₹     25,000 (Rupees Twenty Five Thousand only) for deficiency     of services/harassment/pain and agony; 

(ii)    Respondent no.3 shall further pay to the complainant a     sum of ₹ 25,000 (Rupees Twenty Five Thousand only) as     cost/lawyers fees; and

(iii)    The above-mentioned amount shall be paid with interest     @ 10% per annum from the date of filing of this complaint     (i.e. 04.12.2020) until full realization. 

 

(Rohit Kumar Pradhan)                      (K.W.Bhutia)           

             Member                               President  

WITNESSES EXAMINED BY THE COMPLAINANT:

1.    Jorgay Namka              -    CW-1.

WITNESSES EXAMINED BY RESPONDENT NO. 1 and 2:

1.    Sandeep Sahijwani          -    RW-1.

DOCUMENTS EXHIBITED BY THE COMPLAINANT:

1.    Exhibit 1           -     Computer print-outs of online searches.

2.    Exhibit 2           -    Computer print-outs.

3.    Exhibit 3          -    -do-

4.    Exhibit 4           -    Bill/invoice.

5.    Exhibit 5         -    Customer payment slip.

6.    Exhibit 6         -    Copy of legal notice.

7.    Exhibit 7         -    Postal receipts.

8.    Exhibit 8         -    Print-outs of postal tracking records.

9.    Exhibit 9         -    Reply.

10.    Exhibit 10         -    -do-

11.    Exhibit 11         -    Evidence-on-affidavit of CW-1

DOCUMENTS EXHIBITED BY RESPONDENT NO. 1 AND 2:

1.    Exhibit R-1         -    Evidence-on-affidavit of RW-1.

 

(Rohit Kumar Pradhan)                                         (K.W.Bhutia)             

            Member                                                President