IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                          Friday the 18^thday of  February, 2022

                                  Filed on :07.10.2020

Present

1. Sri.S.SanthoshKumar  BSc.,LL.B  (President )

2.Smt.C.K.Lekhamma, B.A., LLB (Member)

In

CC/No.246/2021

between

                                                                                         (Ops 1 and 4 rep.by Adv.Sri.Saji Mathew,

                                                                                        OP 2 rep.by  Adv.Sri.P.S.Anaghan O.P.3 No           .                       .                                                                                                              representation)

                       DRAFT ORDER

C.K.LEKHAMMA(MEMBER)

1.        Brief facts of the complainants case are as follows:-

The complainant is working in a well-established company in Alleppey in a responsible position.  A mobile phone with latest facilities was of a necessity to the complainant in connection with his job, especially considering the present Covid-19 and the connected “work at home” nature of the job.    The complainant came across the attractive advertisements in newspapers/ media’s as regards the sales of various brands of mobile phones.  Ongoing through the specifications in the advertisements, the complainant came to the conclusion that Samsung mobile phones will serve the purpose and was in search of a retail dealer who offers maximum benefit to customers and also sincere guaranteed service.   The complainant visited the 4^th opposite party’s  shop on 30.06.2020.   On understanding the intention of the complainant  and  the 4^th opposite party informed and explained the details of various brands of mobile, its features and its prices with offers.  Further informed the quality of mobile phones  and costing only below Rs.20,000/- is the best-selling mobile of the above category with outstanding performance and moderate price.  The entire team of 4^th opposite party persuaded the complainant to purchase the model.  Believing their words of the promise of “unmatched performance, unmatched product quality, unmatched service experience and promise of replacement, if there are problems to the phone during warranty period of one year” offered the complainant purchased “Samsung A 21 S vide invoice No.R1/ALP/2089 dated 30-06-2020 for Rs.18,880/-(Rupees eighteen thousand eight hundred and eighty only).

       But the working of the mobile was not at all satisfactory from the 1^st week of its purchase and suffering from several problems.  Due to covid restrictions, the complainant was unable to proceed in the matter for some days.  After some days, the complainant contacted the 4^th opposite party, dealer on 20.07.2020 and informed the complaint.  They replied that they are only the retail dealers doing the sale of the  product and can do nothing to rectify the problems to a product sold by them.  They directed to contact the 5^th opposite party.    When the complainant contacted them, but the phone was not attended by anybody.  Later it was known that the service center is closed, being in the containment zone.  Therefore sent an E-mail on 21.07.2020 to the service head, India. The reply received was to contact the service center and informed that the service engineer will examine the mobile phone and will provide satisfactory solution under Samsung guidelines.  Considering this the complainant reached the service center, they accepted the phone, checked it and returned informing that the defect has been rectified.

Even though the phone was working on 22.07.2020 F.N, the problem developed again on 22.07.2020 A.N, the phone was entrusted to the 5^th opposite party service center.  The phone was returned after two days informing that the problem has been solved by up-dating the software.  On 27.07.2020, while talking to his superior officer on an urgent matter, the mobile again stopped working and gave it to the dealer.  Subsequently the complainant called the 4^th opposite party over phone, described the difficulties and inconvenience to him due to the frequent non working of the mobile within one month of purchase and requested replacement, as promised at the time of purchase.  However, the dealer rejected the request informing that replacement is possible only if requested within 14 days.   Therefore sent another E-mail on 27.07.2020 to the service head of Samsung informing facts.  However, there was no reply.  He contacted the 4^th opposite party over phone the next day also and requested to consider the request.  But there has been no proper initiative yet from him to find a solution to the problem to replace the phone by a new one in perfect working condition.  The phone was also kept in the shop without taking any steps for rectifying the problems.  Hence on 03.08.2020, he went to the dealer and accepted back the phone.  Thus the mobile purchased by him with hard earned money only on 30.06.2020, to meet urgent needs, is kept with the complainant without working.  The above irresponsible behavior and negligence on the part of the opposite parties in not taking steps yet to find remedy to the problem has created a lot of difficulties to the complainant.  Due to the non-availability of the phone he has not been able to do justice to his job.  Considering the fact that the mobile was returned by the 4^th opposite party neither without rectifying the defects nor by replacement with a phone in working condition, the complainant believe that the mobile phone can never be repaired and even if repaired, will become faulty immediately.  The complainant believes that since the problems started from the 1^st week of purchase itself and since the repair was a continuous process, it will never provide satisfactory performance.  As such, the complainant has lost faith in the product and therefore, wants the company to accept back the product and refund its cost with interest.

          The complainant has therefore sent a letter dated 18.08.2020, to all opposite parties requesting either to replace the phone with a new one or refund the cost received with interest.  The letter, sent by registered post on  18/8/2020 has been received by all the opposite parties on various dates.  However, there has been no remedy yet.  The above problem has created a lot of difficulties to the complainant and put him in deep mental agony, distress and disappointment.  The complainant is thus of opinion that the action on the part of the dealer amounts to deficiency of service and unfair trade practice and is utterly against their promise.

          In the above circumstances, the complainant approached this Commission for seeking the following reliefs.

 To pass orders directing the opposite parties to refund Rs.18,880/- being the cost of the phone with 15 % interest from the date of purchase.

1. Direct the opposite parties to pay an amount of Rs.3,00,000/- as compensation,  considering the financial loss, due to deficiency of service and unfair trade practice of the opposite parties in supplying a mobile with frequent problems and pay an amount of Rs.1,00,000/- as costs.

  2.       1^st and 4^th opposite parties filed a version mainly contenting as follows:-

         The complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed in limine as the case is bad for misjoinder and non joinder of parties.  The 1^st opposite party individually made as a party whereas it was proper for the complainant to have mentioned the partnership as a party even though the partnership firm itself was not liable to be made a party as per law.  It is a fact that the complainant had purchased the subject mobile phone as mentioned in the complaint from the 4^th opposite party, oxygen the digital shop.  However the contention that the manager of the above firm had informed the complainant that Samsung A-21S costing around Rs.20,000/- is a bestselling mobile in the above category and the buyers had expressed satisfaction etc. are absolutely false and hence denied.  It is as per the choice of the complainant himself that a mobile phone was selected and purchased by him.  The further contention that shop is offering excellent after sale service is an incorrect statement made by the complainant to the extent that as far as Oxygen the Digital shop is concerned they will not service a mobile which is under warranty from a manufacturing company, inspite of the same necessary assistance would be offered directing the customer to approach the authorized service centre of the manufacturing company.  The above policy is extremely important and relevant considering the fact that it is only for the authorized service center of the manufacturing company to attend the mobile phone under warranty and if any other entity or person proceeds to service the mobile, the same would be against the warranty conditions of the manufacturing company disentitling the end customer from the benefit of the warranty.  It is under the above background when the complainant had approached the 4^th opposite party he was directed to approach the authorized service centre of the manufacturer.  The contention raised in para 5 that the employees of the 4^th opposite party had given specific promise of “unmatched performance, unmatched product quality, unmatched service experience and promise of replacement, if there are problems to the phone during warranty period of one year” is absolutely false and hence denied.  Further as explained above it was totally without any right for the opposite party No.4 to  have ventured to service the mobile phone since they not be an authorized service centre of the 2^nd opposite party manufacturer.  The various other grievances made by the complainant regarding loss suffered by him, embarrassment faced by him in his employment etc. are not in any manner directly connected with the mere sale of the mobile phone manufactured by the 2^nd and 3^rd opposite parties.  This opposite party is concerned an initial one week period is provided to report inherent complaint in the mobile phone to the manufacturer as per the policy set by the manufacture.  In the instant case it is for the complainant to directly take up the matter with the manufacturing company for rectification of his grievances and 1^st and 4^th opposite parties do not have any direct role in this endeavour other than to convey the grievances.  There is absolutely no deficiency of service as alleged from the side of this opposite party since it was at the choice of the complainant that the particular mobile phone was purchased by him.  In the above circumstances complaint is to be dismissed with compensatory cost discarding the contentions of the complaint.

  3.       2^nd and 3^rd opposite parties filed a version mainly contenting as follows:-

        The complainant has filed the instant complaint without verifying the facts and exercising reasonable due diligence and therefore have wrongly impleaded opposite party No.2 and 3 as party to the complaint.  opposite party No.2 and 3 is a well reputed company and is having a very large customer base and among others, manufactures, manages the electronic appliances, mobile hand set business and having its office at Samsung India Electronics Pvt.Ltd. 20^th -24^th floor, DLF II Horizon centre, Golf course road, sector 43, Gurgaon- 122002.   In the Samsung handset if some defects are noticed, that will not automatically come within the meaning of manufacturing defect and there may be possibility for that defect due to mishandling, improper handling, or any other reasons also which could be rectified, and that is why, the consumer protection Act contemplates expert opinion when the defect is not visible, when the complainant raised complaint for touch issues, the service engineer inspected the said handset and found no manufacturing defects in the handset but as a goodwill gesture and also as the complainant was insisting the service centre updated the software of the said handset.  That the service centre also informed the complainant that the handset was defect free as no defects were found by the service centre.  It is pertinent to mention all the services such as software update was carried out by the answering opposite parties as a goodwill gesture within warranty and free of cost services were provided to the complainant.  Last time the complainant approached the service centre, thorough check of the set was done by the service centre and the service centre also informed the complainant that the set is working fine and also informed him that there were no defects found in the handset. Therefore, there were no defects in the said handset and nowhere refund/ replacement in such scenario were mentioned in the warranty terms and condition of the said mobile set.

         The complainant had also lodged a complaint at the service centre of opposite party No.2 and 3 and proper service was provided to the complainant. But as a goodwill gesture and also as the complainant was insisting, the service centre updated the software of the said handset.  That the service centre also informed the complainant that the handset was defect free as no defects were found by the service centre.  It is pertinent to mention all the services such as software update was carried out by this opposite parties as a goodwill gesture within warranty and free of cost services were provided to the complainant.            

        The complainant has suppressed material facts, which only shows that there were no manufacturing defects to the handset within the warranty period and that there were no defects found in the set.  There were no manufacturing defects or any defects in the handset at the time of sale and that no such defects arose due to the manufacturing defects.  Thus, the present allegations of unfair trade practices and deficiency in service as alleged by the complainant in his complaint is a complete abuse of the process of law for illegal gains and to harass the opposite parties.   The opposite parties have acted as per the terms and conditions of warranty and in compliance with law.  Therefore, as per Sec.1 (1) (g) of Consumer Protection Act these cannot be termed as deficiency in service.  The terms and conditions of the warranty, replacement or refund of handset in case of no defects, physical damages, mishandling of the handset and out of warranty period or providing compensation was not mentioned in the warranty card as well.  The opposite party No.2 and 3 here is willing to carry out the necessary repairs and replacement of the parts strictly as per the terms and conditions of the warranty manual.  It was further stated that there was, thus neither any deficiency in rendering service on the part of opposite parties No.2 and 3, nor did they indulge into unfair trade practice, therefore opposite party No.2 and 3 is not liable to refund/ replace/ provide compensation for the said handset as no manufacturing defects were found by the answering opposite parties in the said set.  The complaint is liable to be dismissed on grounds that there was no deficiency in rendering service, on the part of opposite parties nor did they indulge into unfair trade practice.  Therefore, to dismiss the complaint with exemplary cost in favour of opposite parties and against the complainant in the interest of justice, equity and good conscience.

4.        Points  that arise for consideration are as follows:-

1. Whether the complainant is entitled to get any relief from the opposite parties?.
2. Whether opposite parties have committed deficiency in service? If so what is the quantum of compensation?
3.  Relief and costs if any?

5. The complainant represented through the authorized agent, who was adduced oral as well as documentary evidence.Ext.A1 to A8 were marked. From the side of opposite parties 1&4, Rw1 and Rw2 were examined and Ext.B1 was marked from the side of opposite parties 2&3.  Thereafter we heard both sides.

5.          Point no.1 & 2:-

         As per Ext.A1 tax invoice dt.30.6.2020, is the purchase bill of the gadget and the same was issued by the 4th opposite party. Ext.A2 is the prospectus and warranty card of the product. Ext.A4 is a copy of letter dt.18.8.2020 to the opposite parties, it is informed  about the defects of the disputed gadget and requests to replace the same. Ext.A5 is the email request dt.27.7.2020 to the manufacturer in which also mentioned that after the update of the software by the 5th opposite party the defect is not solved and the handset is in switch off mode.  Rw1 deposed that he had prepared Ext. B1 technical report. As per Ext. B1 report the handset was entrusted with the 5^th opposite party on 22.7 2020 and 27.7.2020 on different complaints. This complaint occurred within a short period hence the complainant alleged manufacturing defect. Rw1 deposed that the 1^st  issue was solved when, the software was updated. The second complaint was due to the improper charging of the mobile.  So there is no defect in the gadget as alleged by the complainant and alleged defect was not proved with the support of expert evidence.  Even though there no expert opinion to substantiate the case of the complainant, Ext.A4&5 letter is evident that the handset is still in switch off mode. At the same time, nothing is before us to prove that the manufacturer have taken any positive steps to rectify the alleged defect. Moreover, they have not responded to the intimation given by the complainant. Therefore, our considered opinion is that the 2^nd and 3^rd opposite parties are liable to cure the defect of the disputed handset and give a fresh warranty for the same. Though the warranty has been provided by the manufacturer, the 4th opposite party the dealer has no liability to rectify the alleged defect. It seems that when the complainant has approached them they have directed him to approach the 5^th  opposite party the service centre of the 2^nd and 3^rd opposite parties. It is found that the defects were properly communicated to 2^nd and 3^rd opposite parties but did not care to rectify the defect hence the complainant constrained to file this complaint. However, dealer cannot avoid his liability simply on the ground that who was not a manufacturer. The consumer does not have any contact with the manufacturer. He buys the things from the dealer. If the dealer sells a product which is not in conformity with the warranty given by the manufacturer then the dealer is equally liable for the sale of defective product. The said acts of opposite parties 2 to 4 amounts to deficiency in service and on that counts the said opposite party is liable to pay compensation to the complainant. 

6.    Point.no.3:-

 In the result complaint is allowed in part.

    1. The 2^nd and 3^rd  opposite parties are liable to rectify the defect of the disputed Mobile phone within the period mentioned below and to provide a fresh warranty for a further one year.  In that event, the complainant has to entrust the gadget to the 5th opposite party, the authorized service center each.

2. The opposite parties 2 to 4 are liable  to pay Rs. 5000/- (Rupees Five thousand only) towards compensation for deficiency in service and also liable to pay Rs. 2000/- (Rupees Two thousand only) towards litigation cost to the complainant.

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

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 18^thday of February, 2022

                                                Sd/-Smt. C.K.Lekhamma (Member)

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

Appendix:-Evidence of the complainant:-

PW1                      -   Faizal Katloo (Authorised Agent of the complainant)

Ext.A1                       -    Tax Invoice

Ext.A2           -    Quick Start Guide of Samsung

Ext.A3                  -    Warranty Card

Ext.A4                  -    Letter to Ops 1 to 3 from the complainant.

Ext.A5                  -    Copy of Gmail letter

Ext.A6                  -    Postal receipts

Ext.A7                  -    Acknowledgement Card.

Ext.A8                  -    Article  Tracking Details.

Evidence of the opposite parties:-    

 RW1                      -    Muhammad Anns N.(Service Engineer  in OP2)

 RW2                      -    Justin .S.(Manager, Oxygen Digital Shop)

 Ext.B1                   -    Technical Report

                                                       ///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Br/-

Comp.by: