DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 572/2016
Date of Filing: Date of Admission Date of Disposal:
07.09.2016 16.09.2016 30.05.2018
Complainants = Vs. = O.P.
1.Atoshi Roy 1. The Managar,
W/O Sayantan Roy Reliance Retail Ltd
Khushi Apartment, Satyam Tower, VIP Road,
Flat No:B/1,2nd floor, Kaikhali, Near B.P Poddar Institute.
G/F8, Rabindrapally, Opp. Haldiram, Kolkata-700052
P.O: Deshbandhunagar, 2.The Manager
P.S: Baguiati, B2X Service Solutions India Pvt.Ltd.
Kolkata-700059. PS IXL, Mouza Atghora, JL-10
2.Sayantan Roy P.S: Newtown, Kolkata- 700136.
Khushi Apartment, 3. The Director,
Flat No:B/1,2nd floor, Samsung India Electronics Ltd.
G/F8, Rabindrapally, 2nd, 3rd, 4th, Floor, Tower -C
P.O: Deshbandhunagar, Vipul Tech Square,
P.S: Baguiati, Golf Course Road, Sec-43,
Kolkata-700059. Gurgaon-122002.
P R E S E N T :- Sri Bankim Chandra Chattopadhyay………..…..President.
:- Sri Siddhartha Ganguli ………………………….Member.
Ld. Advocate for the Complainants :- Madhusudan Das
Ld. Advocate for the OPs :- Amit Kr. Muhuri, Rajashree Dutta & Ors
Judgment and Final Order
An Application has been filed by the complainants U/S 12 of the Consumer Protection Act 1986 alleging deficiency in service on the part of the OPs and pray for replace the mobile handset or refund the entire purchased amount of Rs.25, 906/ along with compensation to the tune of Rs. 10,000/- on account of physical harassment and mental agony of the complainants and further for litigation cost amounting to Rs.3000/ and other reliefs as may be granted as per law.
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CC-572 of 2016
The brief facts of the Case of the complainants is that the complainant No: 1 had purchased a Samsung Galaxy A8 mobile phone from OP No:1 at a price of Rs. 25,906/ on 26.01.2016.
It is the allegation of the complainants that the SIM card and camera of the said mobile handset stopped working on 27.03.2016 and immediately thereafter the complainants rushed to the shop of O.P No: 1 and informed the defects in the mobile to O.P No: 1, who in turn advised them to go to the O.P No: 2, the service provider, for check up and repair the defects and accordingly the complainants visited the service centre of O.P No: 2 on 28.03.2016 and the O.P No:2 checked up the handset of the complainants and kept it with him for further check up after issuance a job sheet.
It is the allegation of the complainants that on 30.03.2016 they received a phone call from O.P No:2 that after due checking the O.P No:2 found some sweat inside the mobile, which fall under the category of liquid damage and that does not fall under the service of warrantee period.
It is further alleged by the complainants that thereafter the O.P No: 2 demanded certain extra amount for repair of the mobile handset but the complainants refused to pay the same and informed the matter to the Senior Manager of the O.P No: 2 and he told the complainants that the estimated repair charge of the mobile handset would be around Rs.11, 215/ but ultimately the complainants refused to pay the same.
It is further alleged by the complainants that the Senior Manager of O.P No: 2 assured them to check up the handset thoroughly and convey the report later on and the complainants at about 19:46 hrs on the same day received one SMS that the mobile handset of the complainants has been repaired completely and they were asked to collect the same from the O.P No: 2.
The complainants on 01.04.2016 went to collect the phone from O.P No: 2 and found that no repair was made and the handset was lying there in unrepaired condition. The complainants had shown the SMS and demanded their repaired phone, but the OP No- 2 asked them to deposit Rs. 11,215/- as repair charge of the cell phone and the complainants denied to pay the same and requested O.P No: 2 to hand over the unrepaired phone to them as the complainants wanted to repair their phone from another service center or to verify the cell phone from another service centre of the Samsung Service Centre but the OP 2 did not do so.
Finding no other alternative the complainants filed a complaint before the Asst. Director, CA and FBP, Salt Lake for mediation but no mediation was made and the case was dropped with a direction to file a specific case before this Forum and accordingly the complainants filed this case before the Forum alleging deficiency in service and unfair trade practice of the OPs and pray for the following reliefs.
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CC-572 of 2016
Relief Sought for:-
- Complaint U/S 12 of Consumer Protection Act be proceeded as per Law to benefit and protect the complainant.
- Give relief to replace the phone or refund the entire purchased amount of Rs. 25,906/- along with compensation of Rs. 10,000/- for physical harassment and mental agony of the complainant.
- Litigation cost of Rs. 3,000/- may kindly be allowed in favour of the complainant.
- Any other relief or relives which is your complainant is legally entitled to get.
Document Enclosed by the complainants (Xerox)
- Retail invoice of Reliance Retail Limited dt. 26.01.2016.
- Acknowledgement of Service Request of B2X Service Solutions India Pvt. Ltd. dated 28.03.2016
- SMS Print out of 30.03.2016
- E-mail messages.
- Letter of Asstt. Director, CA & FBP, Salt Lake, dated 16.06.2016
Notices were issued upon the OPs but despite receiving notices OP No: 1 & 2 did not turn up and therefore the case is being proceeded ex-parte against OP No: 1 & 2.
The OP No: 3 appeared before this Forum and contested the case by filing W/V.
It is stated by the OP No:3 in his W/V that the complainant purchased one SAMSUNG GALAXY A8 mobile phone being model no- SM-A800IZDEINS and having serial no- RZ8H102H6LE manufactured by OP 3 and purchased from the OP 1 on 26.01.2016 for Rs. 25906/- of her choice.
It is further stated that one complaint was made on 28.03.2016 when the complainants alleged that from the very previous day the SIM card and the camera of the said handset stopped functioning. The complainant took the said handset to the O.P No: 2 who is the service Centre of the O.Ps on 28.03.216. Upon inspection of the said handset, it was found that due to liquid seepage inside the said handset, it was not functioning. The said liquid seepage was an external factor and not covered under the warrantee terms of the answering O.P. As such the repair was subject to payment of cost of Rs.11, 219/ as the said damage was not a manufacturing defect but was a physical damage caused by negligence on the part of the complainants.
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CC-572 of 2016
The complainants refused to pay the sum of Rs.11,219/ for the required repair. In fact, the complainant argued with the service engineers as to why they said handset was opened in her absence. It is further stated that in order to repair the said handset, an inspection of the said handset is necessary. The complainant failed to realize the fact and was obstinate to get the repair done free of cost. As the complainant declined to pay the sum of Rs.11,215/ the said handset could not be repaired by the answering O.P. It is stated by the OP 3 that the warranty coverage of the mobile handset for one year. As per the warranty terms any spare which are found to have any defect and if the same spare part is under warranty coverage, the same is repaired and/or replaced free of cost, but if any damage is caused to the handset due to external factors or is not functioning due to certain conditions like water logging, misuse, etc then the same are not covered under warranty and any kind of repair and/or replacement is done on chargeable basis. The OP 3 denied the entire allegations leveled in the complaint petition and prayed for dismissal of the case.
The OP 3 filed copy of warranty card, copy of job sheet.
The complainant filed affidavit-in-chief and adduced evidence in order to prove their case. On the other hand the OP 3 filed affidavit-in-chief. The complainants filed BNA and on the other hand the OP 3 filed BNA and placed some case rulings.
From the compliant petition, W/V of OP 3 and evidence of the parties the following points have been framed:
- Are the complainants consumer?
- Are the OPs deficient in service?
- Are the complainants get any relief as prayed for?
Decision with reasons:-
All the points have been taken together for the sake of brevity and for avoidance of repetition of facts.
It is the admitted position that the complainant No: 1 has purchased the mobile handset as stated above from the O.P No: 1 after payment of Rs.25906/ on 26.01.2016 and the same has got some defect in it and the complaints went to the O.P No :1,who then advised them to go to the O.P No:2, the service provider and accordingly the complainants visited the O.P No: 2 with the mobile handset and the O.P No: 2 after checking found that the mobile handset was not functioning due to some liquid seepage and demanded that an amount of Rs.11,219 was required to be paid by them in order to repair the same, as the said defect was not covered under the warranty.
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The complainants denied to pay the same and approached the Asst. Director, C.A & FBP, Salt Lake for mediation, but the mediation was failed and the complainants ultimately filed this case for redress.
Here in this case, the complainant No: 1 purchased the mobile handset from O.P No:1after payment of Rs.25,906/ and therefore the Complainant No:1 is a consumer within the meaning of Consumer, as defined in Sec-2(1)(d) of the C.P.Act,1986. Nowhere in the complaint petition, the Complainants has stated that the mobile handset has been purchased for the use of either of the parties and no claim of beneficiary has been agitated and therefore we think that the Complainant No: 2 is not a consumer and simply a redundant party.
Now, in order to ascertain whether the O.Ps were deficient in service or not we have to delve into the evidence adduced by the parties and have to consult the case record minutely.
The complainants stated that the SIM card and camera of the said mobile handset stopped working on 27.03.2016 and immediately thereafter the complainants rushed to the shop of O.P No: 1 and informed the defects in the mobile to O.P No: 1, who in turn advised them to go to the O.P No: 2, the service provider, for check up and repair the defects and accordingly the complainants visited the service centre of O.P No: 2 on 28.03.2016 and the O.P No:2 checked up the handset of the complainants and kept it with him for further check up after issuance a job sheet.
The complainants further stated that on 30.03.2016 they received a phone call from O.P No:2 that after due checking the O.P No:2 found some sweat inside the mobile, which fall under the category of liquid damage and that does not fall under the service of warrantee period.
It is further stated by the complainants that thereafter the O.P No: 2 demanded certain extra amount for repair of the mobile handset but the complainants refused to pay the same and informed the matter to the Senior Manager of the O.P No: 2 and he told the complainants that the estimated repair charge of the mobile handset would be around Rs.11, 215/ but ultimately the complainants refused to pay the same.
The complainants on 01.04.2016 went to collect the phone from O.P No: 2 and found that no repair was made and the handset was lying there in unrepaired condition. The complainants had shown the SMS and demanded their repaired phone, but the OP No- 2 asked them to deposit Rs. 11,215/- as repair charge of the cell phone and the complainants denied to pay the same and requested O.P No: 2 to hand over the unrepaired phone to them as the complainants wanted to repair their phone from another service center or to verify the cell phone from another service centre of the Samsung Service Centre but the OP 2 did not do so.
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It is stated by the OP No: 3 that upon inspection of the said handset, it was found that due to liquid seepage inside the said handset, it was not functioning. The said liquid seepage was an external factor and not covered under the warrantee terms of the answering O.P. As such the repair was subject to payment of cost of Rs.11, 219/ as the said damage was not a manufacturing defect but was a physical damage caused by negligence on the part of the complainants.
The complainants refused to pay the sum of Rs.11,219/ for the required repair. In fact, the complainant argued with the service engineers as to why they said handset was opened in her absence. It is further stated that in order to repair the said handset, an inspection of the said handset is necessary. The complainant failed to realize the fact and was obstinate to get the repair done free of cost. As the complainant declined to pay the sum of Rs.11, 215/ the said handset could not be repaired by the answering O.P.
It is stated by the OP 3 that the warranty coverage of the mobile handset for one year. As per the warranty terms any spare which are found to have any defect and if the same spare part is under warranty coverage, the same is repaired and/or replaced free of cost, but if any damage is caused to the handset due to external factors or is not functioning due to certain conditions like water logging, misuse, etc then the same are not covered under warranty and any kind of repair and/or replacement is done on chargeable basis.
We have gone through the copy of job sheet and the copy of warrantee card.
It is evident from the job sheet that the mobile hand set has been given to the O.P No: 2 for repair and in the ‘defect description’ column it is written as ‘camera failure, not reading SIM card, getting heated while charging’. Again, from the copy of SMS it is seen that the necessary repair was done and the complainants were asked to collect the mobile hand set from the service centre. Further from the
Correspondences via mail, we found that the O.P No: 2 stated that the defect does not cover the warrantee and it is chargeable and the complainants were asked to pay Rs.11219/ for such repair which the complainants denied. It is evident from the warrantee card that the warrantee shall be void if product has failed under certain conditions/types (example water logging, misuse etc.).Again as per clause 18 it is stated that defects arising out of the following are not covered under warrantee:
- Mishandling/Misuse
- Improper Ventilation
- Improper Voltage
- Use of external Material
- Physical damage and/or electrical damage caused by physical impact.
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From the evidence of O. P No: 3 it is found that the O.P No: 3 stated that the handset manufactured by the company with warrantee coverage of one year. As per the warrantee terms any spare which are found to have any defect and if the spare part is under warrantee coverage, the same is repaired and/or replaced free of cost. However, if any damage is caused to the handset due to external factors or is not functioning due to certain conditions like water logging, misuse etc. then the same are not covered under warrantee and any kind of repair and /or replacement is done on chargeable basis.
Again it is found from the evidence of O.P No: 3 that as per warrantee terms any spare which are found to have any defect and if the spare part is under warrantee coverage, the same is repaired and/or replaced free of cost. However, if any damage is caused to the handset due to external factors or is not functioning due to certain conditions like water logging, misuse etc. then the same are not covered under warrantee and any kind of repair and/or replacement is done on chargeable basis.
It is the settled principle of law that the initial burden of proving the facts lies upon the complainant. But the burden shifts upon the O.Ps if the O.Ps denies the disputes as alleged by the complainant by putting rebutting evidence. The O.Ps failed to prove the contentions as stated in their W/V by cogent evidence. The product was in the custody of the O.PNo:2 and the said O.P No: 2 tested the product and found the defects as alleged by him but such contention must be proved by him otherwise presumption will go in favour of the complainant.
The O.P No:3 cited a case ruling of the Hon’ble National Commission reported in 2014(1) CPJ 132 in which Hon’ble National Commission was pleased to hold that ‘onus to prove manufacturing defect in vehicle was on complainant and same should be proved by expert evidence, in absence of which no liability could be attributed to petitioner to compensate complainant’.
Ld Advocate for the O.P No: 3 stated that in the absence of any technical report on record, the present complaint deserves dismissal on the above ground alone.
Further, the O.P No: 3 cited a case ruling of the Hon’ble National Commission reported in 2016 SCC Online NCDRC 2619 in which Hon’ble NCDRC has been
pleased to hold that ‘in the absence of any credible evidence that there is any manufacturing defect in the vehicle, the petitioner is not entitled to such replacement of the vehicle or refund of the entire price of the vehicle.’
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Again the O.P No: 3 cited a case ruling of the Hon’ble National Commission reported in 2015 SCC Online NCDRC 668 in which Hon’ble National Commission has been pleased to hold that ‘as the complainant could neither proved manufacturing defect by adducing any cogent evidence by any authorized expert nor any tests were carried out by the Govt. Laboratory as per Sec-13(1)(c) of the C.P Act,1986, there was no manufacturing defect’.
The complainant’s case is not a case of manufacturing defect and the ratio of the case decisions are not applicable in the present case in hand. The mobile handset of the complainant is with the O.P No: 2 who only inspected the mobile handset. If product was tampered, misused, components removed, cracked or liquid logged as stated by the O.Ps the same could be proved by cogent independent evidence by the O.Ps but the O.Ps did not do so. Rather they asked to pay for repair while the product was under warrantee coverage. The theory of misuse, mishandling, liquid seepage, or water logging or manufacturing defect as raised by the O.Ps are not tenable.
We are of the view that the defects does cover under the warrantee conditions and therefore we find deficiency in service on the part of the O.Ps. The judgments cited by the O.Ps are not befitting with the facts and circumstances of the case and therefore the ratio of the cases are not applicable in the present case in hand.
Here the O.P No: 1 is the dealer, O.P No: 2 is the service centre and O.P No: 3 is the manufacturer and the complainant has been able prove deficiency on the part of the O.Ps.
To sum up, we are of the opinion that the complainant has proved the case as alleged and we found deficiency in service on the part of the O.Ps as the defects in the mobile hand set was within the warrantee conditions the same should be repaired without charging any cost.
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As there was deficiency in service on the part of the O.Ps we think that an amount of Rs.6,000/as compensation is just and proper to commensurate the
grievances, mental pain, agony and sufferings of the complainant and as the case of the complainant has been conducted by C.A.B litigation charge is not awarded.
Therefore, all the points have been discussed elaborately and disposed of.
Hence
It is ordered that the Consumer Complaint being No: CC-572 of 2016 is allowed Ex-parte against O.P No: 1 & 2 and contested against O.P No: 3.
O.P No: 2 is directed to repair of the mobile hand set of the complainant free of cost and hand over the same to the complainant after repair with workable condition within 2 months from this day.
All the O.Ps are jointly and severally directed to pay compensation of Rs.6,000/ to the complainant within 2 months from this day.
If the O.P No: 2 is failed to repair the mobile handset and handover the same with workable condition within the stipulated period of time as mentioned above, the O.P No: 2 is directed to return Rs.20,000/ to the complainant, the value of which has been fixed after considering the depreciation value of the mobile handset and usage by the complainant.
Let free copies of this order be given to the parties concerned as per C.P Rules and Regulations.
Member President
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Member
