Orissa

Rayagada

CC/32/2020

Debendranath Bisoi - Complainant(s)

Versus

The Chief Executive Officer Samsung India Ltd., - Opp.Party(s)

Self

24 Mar 2021

ORDER

DISTRICT CONSUMER  DISPUTES REDRESSAL COMMISSION RAYAGADA,AT- KASTURI NAGAR 1^st LANE, LIC OFFICE BACK, PO/DISTRAYAGADA,ODISHA STATE, PIN- 765001. PHONE/FAX NO. 06856223025

 

CONSUMER CASE NO.   32 /2020          Date.  24.3.2021.

P R E S E N T .

Sri   Gadadhara  Sahu,                                                      President.

Smt.Padmalaya  Mishra,.                                                 Member

 

 

Debendra Nath Bisoi, aged about 25years,

S/O Sri Bipin Bihari Bisoi, At- Brahmin Street,

PO/PS/Dist- Rayagada-765001,Odisha                     COMPLAINANT

                                                                     -Versus-

1.         Chief Executive Officer,Samsung India Electronics Pvt Ltd.,

21st floor, Two Horizon Center Sector- 43

            Golf Course Road, DLF Phase-V Gurgaon, Hariyana- 122002  

2          The Proprietor, Sri Krushna Mobiles, Samsung Care,OPP-Andhra      Bank, New    Colony,             PO/PS/Dist- Rayagada-765001,Odisha ,

            Mobile-            9937071617

3.         Mr. Bishnu Charan Behera,Proprietor, Kapilas Cyber Solution,

            Hotel Kapilas Side, New Colony, PO/PS/Dist- Rayagada-765001,Odisha Mobile-            7008103239                                                                                                                                                                                             OPP.PARTIES

         

For    the complainant   Sri  Santosh Kumar Satapathy

For the O. P No.1 & 2    Sri  K.Ch. Mohapatra, Rayagada.

For the O.P.No.3  Set exparte.

                                                            JUDGEMENT

 

1. The factual  matrix of the Complaint is that, the Complainant, had purchased one Samsung Galaxy A-80 smart mobile  bearing IMEI No. 356835100483725 from the O.P.1 on dt. 01.08.2019  vide invoice No. 956 of O.P.1 by paying a sum of Rs.48000/Rupees forty eight thousand  which within .one month of its use, shoot out problems, like hanging, low battery backup and auto VoLTE disconnect. Hence the Complainant  approached the seller i.e. the O.P.3 for exchange of the mobile, but the O.P.3 suggested to approach the authorized Service centre i.e. the O.P.2. Hence, the Complainant approached the O.P.2 on dt. 12.02.2020  and surrendered the mobile for service.The O.P.2 returned the mobile after service on 24.02.2020  but the mobile is found with the same problems as before, hence on 28.02.2020 the Complaint again approached the O.P.2  and gave the  the mobile  who   returned the mobile  on 17.03.2020 with excuses that, the mobile is beyond the possibility of any repairs as  it has inherent manufacturing defects. The Complainant claims that he is a professional and is frequently in need of mobile, for which he had an high end mobile being allured by the high advertisement of the O.P.1, but  providing him a defective set and failure to replace it after the defect is detected is deficiency in service on the part of the O.P.s for which he is inflictded with great financial  and mental injury beyond cardinal measures.Hence, the Complainant filed this complaint against the O.P.s for reimbursement of the cost of the mobile with heavy compensation and cost of this litigation.

 

2. The Complainant has submitted us the invoice No. 956 dtd. 01.08.2019  of  Kapilas Cyber Solution,,Rayagada, two service invoice of the authorised service centre of O.P.1 Sri Krushna Mobiles bearing  invoice No. 429938009 dt. 12.02.2020  invoice No. 4300219951  dtd.  24.02.2020  Considered.

3.The O.P.1 and O.P.2 made their appearance through their  learned counsel only to contend that the product when was let out of the factory to different distributors is screened thoroughly and only when it is  found defect free then the product is let out to market.  The product in question  undoubtedly have gone through  check ups and at the time of let out to market it was free of any latent defect, hence the sole responsibility can not be shouldered upon the manufacturer for the defect, it could be attributable to many probabilities, the misuse, overloading of apps, mal-virus through internet etc. Hence, it is not a fit case to thrash liability on the manufacturer for the defect in the product.  The O.Ps  No.1 & 2 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act. The facts which are not specifically admitted may be treated  as denial of the O.P. No.1 & 2.  Hence the O.Ps  No.1 & 2 prays the forum to dismiss the case against  them  to meet the ends of justice.  The O.P.1 & 2 however, could not show us, if similar products have been shooted out with similar defects for the kind of misuse or overloading of apps etc.

4.       The O.P.3 (Retailer) refrained from appearing before the District Commission to present his submissions, hence, the District commission  proceeded to decide the case  .

5. Undoubtedly  the Complainant is an engineering graduate temporarily engaged in private service and had procured the mobile in question on  dt. 01.08.2019  vide invoice No. 956 of O.P.1 by paying a heavy  sum of Rs.48,000/- for his own use, hence is a Consumer. And the same became defect with in one month of the purchase and within valid warranty. From the two invoices, No. 429938009 dt. 12.02.2020  and  4300219951  dtd.  24.02.2020 within short span of time, It is well presumed that, the product has latent defects which the O.P.2 i.e. the authorised service centre of the Manufacturer of the Hand set failed to rectify.  Even after the complaint, the O.Ps did not feel their responsibilities  to get the grievance of their customer redressed  or get the set  replaced .
6. We have perused the warranty card issued by the O.P.1 with the product. It carries one year warranty.
7. With respect to goods sold to consumers within the meaning of the Consumer Protection Act 2019 (hence after called the Act )  its provisions provide for a warranty of quality against latent defects, a warranty of use and a warranty of durability considering the price, contract and normal conditions of use of the product, in addition to prohibitions respecting false representations in the contract or in advertisements. Pursuant to product liability in the Act, the seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects. If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer which includes all direct damages caused to the buyer, including loss of profits.
8. Moreover in a consumer contract, a seller may never invoke his lack of knowledge of the defect where the purchaser's claim is based on the statutory warranties under the CPA and any clause that seeks to limit the implied warranties of quality and fitness is strictly prohibited and may even result in award of punitive damage.
9. Express warranty is defined in the C.P.A-2019 which is reproduced here as follows

 

10. Sec. 2 (20) express warranty means any material statement, affirmation of fact, promise or description relating to a product or service warranting that it conforms to such material statement, affirmation, promise or description and includes any sample or model of a product warranting that the whole of such product conforms to such sample or model
11. The Legal presumption of product liability in a contract of sale, is that a defect is presumed to have existed at the time of the sale if the product malfunctions or deteriorates prematurely in comparison with identical property or product of the same type such a presumption  can only be  rebutted by the seller or the manufacturer if the defect  was  due to improper use of the product  by the buyer.
12. This legal presumption significantly lessens the burden of proof on the buyer who, instead of having to prove the existence of a  inherent  defect at the time of the sale, which is impossible for an ordinary buyer without any technical knowledge of the hardware or software of an electronic product, only has to show that the product has deteriorated or malfunctioned prematurely compared to similar goods. Once this has been proved, it is presumed that the product had a an inherent  defect at the time of sale.
13. On the other hand, where the presumption of product  liability  is applied,, the seller must be able to show, on the balance of probabilities, that the probable cause of the defect is attributable to the negligence of a buyer  to rebut the presumption. He has to demonstrate, that, there could not be other cause than the negligence of the buyer to have the cause of defect in the product. But it can  not be said to be sufficient for the seller or the manufacturer to raise the argument that the defect could have several causes and that the precise cause of the defect cannot be determined.
14. Mere blunt denial of  guarantee of the warranty for the product and repudiate the claim of the consumer without establishing the case of defect beyond any other probabilities, as made by the O.P.1 i.e. the manufacturer can never expunge him of the liability to refund the price of the product and compensate the Complainant for the mental agony and loss of business.
15. From the above discussions and perusing the submissions filed by the complainant, we have carefully verified the alleged set which is left totally defunct. It is further noticed that, the OPs despite receiving notice of this forum  have failed to take any initiations to settle the matter of complainant and there is nothing to reject the contentions of complainant that, he has suffered from mental agony and loss of ability coordinating his official job. Hence we feel that the action of OP is illegal, highhanded and unfair which amounts to deficiency in service and hence found guilty under 2(11)   of the C.P.Act 2019, hence the complainant is lawfully entitled for compensatory relief. As thus the complaint is allowed against the O.Ps.      

O  R  D  E  R

i.        The O.P.No.1 (Manufacturer) is   hereby   directed to pay the price of the mo bile set Rs.48,000/-(Rupees forty eight thousand)only to the complainant. Parties are left to bear their  own cost.

ii.       The   O.P. No2 & 3 are directed to refer  the matter to the O.P.No.1 for early compliance.

iii.      All the above directions shall be complied with in 30 days of this order.

Pronounced on this the   24th      day of   March, 2021

 

MEMBER                                                                     PRESIDENT,

                                                                              DCDRC,    RAYAGADA.