DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM

       Dated this the 18^th day of July 2024

Filed on: 03.03.2021

PRESENT

 Shri. D.B.Binu                                                            President

            Shri.V.Ramachandran                                               Member

Smt. Sreevidhia T.N                                                    Member

C.C No. 117/2021

Complainant:

Bino Babu, S/o Babu. P. V, Kumbalipilly House CSRA 72 A, Chalikavattam, Vennala P. O., Pin-682028, Ernakulam.

(By Adv.Asokan K.V)

Opposite parties:

1. Shafeeq Mobile Hut, Panakkapadathu Building, P.C. Road, Ponnurunni East, Opp.HDFC Bank, Vytila P.O., Pin-682 019
2. The Manager, Mr. Sarath, SAMSUNG MOBILE Service Centre, Cheruparambathu Road, Near Kadavanthra P.O., Pin-682 020, Ernakulam.

F I N A L   O R D E R

D.B. Binu, President:

1.       A brief statement of facts of this complaint is as follows:

The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The complainant, on behalf of his father, purchased a Samsung mobile phone on 6.11.2020, for 7,000 rupees from the first opposite party. The phone exhibited excessive overheating during use, raising safety concerns. Despite multiple attempts to resolve the issue through software updates and battery replacement at the second opposite party's service center, the problem persisted. The complainant sought reimbursement for the phone's cost, compensation for financial and time losses, and recovery of expenses incurred.

2. Notice:

Notices were issued to the opposite parties, but they failed to file their responses within the statutory period, as evidenced by postal records. Consequently, the opposite parties were set ex parte.

3.   Evidence:

The complainant submitted a proof affidavit and three documents marked as Exhibits A1 to A3:

Exhibit A1: GST Invoice

Exhibit A2: Acknowledgment of Advice Request

Exhibit A3: The Aadhaar Card of the Complainant

4. Points for Consideration:

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
3. If so, whether the complainant is entitled to get any relief from the side of the opposite party?
4. Costs of the proceedings if any?

5. Analysis and Legal Reasoning:

A. Maintainability of the Complaint:

As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is defined as a person who buys any goods or hires or avails of any services for consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant provided a copy of the GST Invoice (Exhibit A1), thereby establishing themselves as a consumer under the Act. Hence, the complaint is maintainable.

B. Deficiency in Service and Unfair Trade Practice:

The evidence presented included an ex-parte proof affidavit filed by the complainant, which was unchallenged by the opposite parties. The complainant's claims were considered credible and supported by the evidence. The opposite party's conscious failure to file their written version despite having received the Commission’s notice amounts to an admission of the allegations leveled against them. This aligns with the stance held by the Hon’ble National Commission in its order dated 2017 (4) CPR page 590 (NC).

               In "Samsung India Electronics Pvt. Ltd. vs. Srishant Challa & Ors.," The Hon’ble Telangana State Consumer Disputes Redressal Commission (TSCDRC) overturned the District Commission's decision, which had erroneously concluded that a phone was defective without following the proper procedure under Section 13(1)(c) of the Consumer Protection Act, 1986. The TSCDRC emphasized that only a technical expert can determine manufacturing defects, and since the complainants failed to provide substantial proof or expert opinion, the District Commission's order was set aside (FA. No. 392/2018, decided on 21.11.2023) 【2024 CPJ 187 (Telan.) 】.

In the case "Rishi Communication vs. Raghunath Singh Bisht & Ors.," The Hon’ble Uttarakhand State Consumer Disputes Redressal Commission (USCDRC) ruled on an appeal regarding a mobile phone with manufacturing defects. The district commission had initially directed the retailer to refund the purchase price, citing a manufacturing defect and deficiency in service during the warranty period. However, the USCDRC held that the retailer could not be held liable for the manufacturing defect and modified the impugned order, as the other respondents did not challenge it (First Appeal No. 226 of 2009, decided on 8.12.2016) 【III (2017) CPJ 29 (CN) (Uttar.) 】.

          In "Sai Cellular Services vs. Devdatta S. Naik," The Hon’ble Goa State Consumer Disputes Redressal Commission addressed an appeal concerning a mobile phone with a manufacturing defect. The District Forum had initially ruled in favour of the complainant, directing the seller to replace the defective mobile. However, the Commission held that the seller, being merely a dealer or agent of Nokia Company, was not liable for the defect. The user’s manual with Nokia's warranty, duly stamped by the opposite party (OP), was prima facie evidence of manufacture and sale. The complainant's failure to include Nokia Company, the manufacturer, in the complaint was at his own risk. Consequently, the impugned order was set aside (FA No. 14 of 2012, decided on 1.11.2012) 【I (2013) CPJ 26】.

C. Legal Analysis.

The persistent issue of the phone overheating despite multiple service attempts and assurances of resolution from the opposite parties constitutes a clear deficiency in service. The failure to provide an adequate solution for the defective product falls under the definition of unfair trade practice as per the Consumer Protection Act, 2019.

D. Liability of the Opposite Parties:

In this case, the complainant alleged that the phone had a manufacturing defect but failed to provide evidence or make the manufacturer a party to the complaint. Although the complainant submitted an affidavit naming the manufacturer, it was not legally sufficient. To involve the manufacturer, the complainant needed to submit an application, after which the Commission would issue a notice and hear the manufacturer before passing any order. Additionally, the complainant did not request the Commission to appoint an expert to verify the defect. Therefore, the Commission cannot grant a refund or a new phone. However, since the opposite parties did not respond to the notices, the allegations remain unchallenged.

Given the unchallenged evidence and the failure of the opposite parties to respond, the Commission finds that there is a deficiency in service from the side of the opposite parties. The complainant is entitled to relief for the inconvenience and financial losses suffered.

The opposite parties, as the retailer and service center, had a duty to ensure the mobile phone was in a usable and satisfactory condition. Despite multiple opportunities to address the issue, they failed to rectify the defect. The opposite parties did not fulfil their duty under the Consumer Protection Act, 2019, to provide adequate service and ensure the product met the expected quality standards.

               The Commission takes a humane approach in acknowledging the serious concerns raised by the complainant regarding the persistent overheating of the mobile phone. The potential threat to the safety of the complainant and his family cannot be understated, as overheating devices pose significant risks, including the possibility of explosions or fires, which could result in severe injury or property damage. It is the duty of the opposite parties to ensure the safety and reliability of the products they sell and service. Their failure to address the complainant’s concerns adequately and promptly not only constitutes a deficiency in service but also a neglect of their responsibility to safeguard consumer safety. The Commission, therefore, emphasizes the urgency and importance of rectifying the issue to prevent any harm to the complainant.

          We determine that issue numbers (I) to (IV) are resolved in the complainants Favor due to the significant service deficiency and the unfair trade practices on the part of the opposite parties. Consequently, the complainants have endured considerable inconvenience, mental distress, hardships, and financial losses as a result of the negligence of the opposite parties.

              In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainants.

Hence the prayer is partly allowed as follows:

I.        The opposite parties shall repair the mobile phone in question to a defect-free and satisfactory condition and deliver it to the complainant within 45 days of receiving this order.

II.       The opposite parties shall pay ₹5,000 (Rupees Five Thousand Only) to the complainant for the inconvenience and financial losses incurred. This amount is awarded for the deficiency in service and unfair trade practices, as well as for the mental agony and physical hardships endured by the complainant.

III.      The opposite parties shall also pay the complainant ₹3,000 (Rupees Three Thousand Only) towards the cost of the proceedings.

The opposite parties are jointly and severally liable to comply with the directives mentioned above within 45 days from the date of receipt of a copy of this order. Failure to comply with the payment orders under point II will result in interest at the rate of 9% per annum from the date of filing the complaint (03-08-2023) until the date of full payment realization.

Pronounced in the Open Commission on this 18^th day of July 2024.

Sd/-

                                                                             D.B.Binu, President

Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded by Order

Assistant Registrar

Appendix

Complainant’s evidence

Exhibit A1: GST Invoice

Exhibit A2: Acknowledgment of Advice Request

Exhibit A3: The Aadhaar Card of the Complainant

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