BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    30^th DAY OF SEPTEMBER 2019

Complainant/s: -                           

Sri.Ramprasad Shirankallu 1604, 16^th A Main,

2^nd Phase, J.P.Nagar, Bengaluru-78

Inperson

V/s

Opposite party/s:-    

1. Snapdeal,

Jasper Infotech Pvt. Ltd.,

238, 1^st Floor,

Okhia Industrial Estate,

Phase-3, New Delhi-110020

By Adv.Sri.Awanish Kumar

2. Samsung India Electronics

Pvt. Ltd., B-1, Sector 81,

Phase-2, Noida District, Gautama Buddh Nagar, Uttarpradesh.

By Advocates

M/s.Purna Law Associates

ORDER

SRI. S.L PATIL, PRESIDENT

The Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party No.1 & 2 (herein after called as OPs) to refund the cost of the phone of Rs.14,999/-; to pay Rs.60,000/- towards physical strain and to pay cost of Rs.1,000/-.

2. The brief facts of the complaint are as under:

The Complainant submits that, he had purchased a Samsung Galaxy S4 brand mobile phone model No.GT19500DKYINS manufactured by OP.2 from the online store of OP.1 on 26.11.15. When the said phone arrived, it found faulty. The issue was it would heat up as if it is out of an oven when he would switch it on. The Complainant immediately contacted the OP Samsung service centre. They suggested for a replacement through Snapdeal. When he got back to Snapdeal, they arranged for pickup and assured another phone will be shipped.  In few days, he received new phone that too had defects. The phone screen had a mild purple gradient colour instead of pure white. This time service centre and customer care of Samsung both advised that to return the phone as the gradient may get strong gradually and told that they have stopped manufacturing of the said model and some old stockists are selling these phones which may be faulty. When the said incident brought to the notice of the OP.1, they assured for refund. The technician of OP.1 came to his place, inspected the phone and accepted that there is an issue. Inspite of repeated calls and requests, none of OP.1 came and collect the defect phone for refund. Hence, he registered the online consumer complaint. Thereafter, he sent letter to OP.1 seeking for refund. But, so far he has got no response. Hence this complaint.

3. After issuance of notice, OP.1 & 2 both appeared. Though sufficient time given, OP.1 made delay in filing version, filed along with IA. The same is rejected. Hence, the IA along with version and documents not considered. OP.2 filed version and submits that, there is no evidence that OP.1 is the seller and the Complainant himself has made the payment towards the said mobile. As per the terms and conditions stipulated in the warranty card, the Complainant has to approach the company authorized service centre only for rectification of any malfunction. As and when the customer visits the company service centre, job sheet will be generated and later the service engineer will complete the necessary service related work. Since the Complainant has not visited the authorized service centre as well as allowed third party for rectification of the alleged issue, Samsung is not responsible to meet the demands of the Complainant since the Complainant himself has violated the standard warranty terms and conditions. Apart from these facts, there is no evidence to establish that the technician from OP.1 also certified that there is some issue in the smart phone. The two letters dtd.03.03.16 and 19.04.16 addressed to OP.1 only requesting them to provide some solution to the issue. In both letters, there is no whisper about approaching Samsung service centre. When such being the case OP.2 is not responsible to fulfill the demand of the Complainant. In view of this there is cause of action accrued to the Complainant against OP.2. Hence prays this forum to dismiss the complaint.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. OP.2 filed affidavit evidence. The OP.1 and OP.2 filed written arguments. Heard. We have gone through the available materials on record.

5. The points that arise for our consideration are:

1. Whether the complaint filed by the Complainant against OP.1 before this forum is maintainable ?

2. Whether the Complainant proves the deficiency of service on the part of OPs, if so, entitled for the relief sought for?

3. What order?

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

Point No.1:- In the negative

Point No.2:- In the negative

Point No.3:- As per final order

REASONS

7. At the first instance, this complaint has been filed only against OP.1/Snapdeal subsequently added OP.2/Samsung India Electronics Pvt. Ltd., Further he has added new facts in the complaint without permission of this forum. It is settled preposition of law that any insertion or also deletion in the pleadings is to be brought to the notice to the other side that too with the permission of the court. Hence, the very attitude of the Complainant is not acceptable.

8. In the instant case, OP.1 though did appear through its counsel filed belated version which was rejected by this forum on 25.04.17

9. Point No.1: Now turning to the maintainability of the complaint as against OP.1, directly we placed reliance on the Sec.79 of the Information Technology Act, 2000 reads thus:

79. Exemption from liability of intermediary in certain cases.

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section (1) shall apply if –

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not –

(i) initiate the transmission,

(ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

10. Referring to the said provision, we placed reliance on the decisions of DCDRF, Visakhapatnam in CC.No.221/2013 in the case of Ravuri Veera Ragghavulu vs. Jasper Infotech Pvt. ltd., DCDRF, Amritsar, Punjab in CC.no.15/727 in the case Madhur vs. V.R.Portolia Pvt. ltd., DCDRF, Ferozepur in CC.No.376/14 in the case of Lakshay Malhotra vs. Snapdeal. The sum and substance of the said decisions is that, the Snapdeal is only the facilitator which has been exempted U/s.79 of the Information Technology Act, 2000, wherein the liability arising from any transactions entered in to by the parties through their intermediary website. In the instant case, Snapdeal/OP.1 is the intermediary.  Hence, exempted U/s.79 of the Information Technology Act, 2000, wherein the liability arising from any transactions entered in to by the parties through their intermediary website.  Hence the complaint filed by the Complainant against OP.1 is not maintainable and liable to be dismissed. Accordingly we answered point No.1 in the negative.

11. Point no.2: Now turning to the deficiency of service on the part of OPs, we already recorded our findings in point no.1 holding that, the very complaint filed by the Complainant as against OP.1 is not maintainable.  Any of the alleged deficiency is to be culled out only against the OP.2. On going through the contents of the complaint, the Complainant had made certain allegations in respect of the defect found in the first ordered mobile set, subsequently replaced the same with new one which also found faulty. To substantiate this fact, self-serving version of the Complainant is not sufficient. To prove the alleged defects in the said mobile handset, the technical report/expert report is necessary in the light of the decision reported in I (2011) CPJ 254 (NC) in the case of Kamal Kishore vs. Electronics Corporation of India ltd., and Anr., the relevant para 3 reads thus:

3. Aggrieved by this order, Respondents filed an appeal before the State Commission. The State Commission accepted the appeal by concluding that there was no proof that the TV set purchased by the complainant suffered from any manufacturing defect or that any complaint to this effect had been made by the Petitioner to the Respondent dealer during the warranty period. The relevant part of the order of the State Commission is reproduced:

The warranty of the TV set had expired on 16.07.1989 and during this period of one year the dealer did not receive a single complaint about there being any defect in the TV set. Although, the complainant submitted that he had complained about the defect in the TV on 23.05.1989 and 21.06.1989 but there is no proof to support the said statement. If the complaints were sent in writing, their copies were required to be furnished and filed before the Forum below but no document worthy of credit had been brought on record. We are, therefore, inclined to uphold the appellants contention that he did not receive any complaint during the warranty period about there being any kind of defect in the TV set in question.

The complainant was also under the obligation to establish that a particular kind of defect falling within the purview of inherent/ manufacturing defect had persisted in the TV but neither any engineers report nor any other convincing evidence had been filed either before the Forum below or before us. The allegation of manufacturing defect in a machine is not to be taken to be as a gospel truth on mere statement but it is required to be proved beyond doubt by means of a credible documentary evidence. In the case in hand the opinion of an engineer who would have been an expert in the field of TV manufacturing/repairing would have been of a greater held to the complainant but no such report has been obtained and filed. We are, therefore, not inclined to accept the complainant’s version which is liable to be rejected.

12. In the light of the decisions cited supra, we come to the conclusion that, mere allegations labeling the manufacturing defects in the said mobile handset is not sufficient to fix the liability on OP.2. Hence, the complaint is lacking merits liable to be dismissed. Accordingly we answered point No.2 in the negative.

  13. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant as against the OP.1 is dismissed as not maintainable, so also, complaint against OP.2 is dismissed devoid of any merits.  

2. Looking to the circumstances of the case, we direct both the parties to bear their own cost.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 30^th day of September 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the Complainant dated.02.05.17

Sri.Ramprasad Shirankallu

Copies of Documents produced by the Complainant:

Witnesses examined on behalf of the OP.2 dated.09.05.17

Sri.Anindya Bose, Deputy General Manager-Customer Satisfaction of OP.2   

Copies of Documents produced by OP.2

            MEMBER                                           PRESIDENT