DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 15^th day of May, 2023

Present : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                       

             : Sri.Krishnankutty N.K., Member         Date of filing: 27/08/2020 

CC/95/2020

Jithendran

    S/o Janardhanan.A (Late)

    “Sreenivas”, Palayapeta

    Palakkad – 678 001                                                 -         Complainant                                            

(By Adv. Dhananjayan.K)

                                                           V/s

1. Manager

Chennai Mobiles

    HO Door No. 11/75, Robinson Road

    Near Ranjit Motel, Palakkad – 678 001  

2. The Branch Manager

    Chennai Mobiles, 15/195, Sulthanpet

Coimbatore Road, Palakkad

    (Opposite parties 1 & 2 by Adv. M.R.Manikantan)

3. Samsung India Electronics Pvt. Ltd.

    Regd. Office: A25, Ground Floor Tower

    Mohan Co-operative Industrial Estate

    New Delhi – 110 044

4. Samsung India Electronics Pvt. Ltd.

    Rep. by its Managing Director, Authorised

    Signatory or Manager

    Regd. Office: A 25, Ground Floor Tower

    Mohan Co-operative Industrial Estate

    New Delhi – 110 044

    (Opposite parties 3 & 4 by Adv. Sameer Babu)

5. The Manager

    Bajaj Finserv, Bajaj Finance Limited

    4^th Floor, Sy. No. 208/1B

    Viman Nagar, Pune – 411 014                                

(By Adv. Sidharthan)

6. The Manager

    Blue Point, M-5 Business Centre

    HPO Road, Near HPO

    Palakkad – 678 001                                                -         Opposite parties

    (Authorised dealer of Samsung mobile)

    (Ex-parte)

O R D E R

By Smt. Vidya.A, Member

1.  Pleadings of the complainant in brief

      The complainant purchased a Samsung Tablet with the description SAMSUNG Galaxy Jmax-Tablet – SM – T285YZKYINS from the 2^nd opposite party on 14/03/2018 on payment of an amount of Rs. 12,690/- The product is manufactured by Samsung India Ltd., i.e. the 3^rd and 4^th opposite parties and it has a comprehensive warranty for 1 year.  At the time of purchasing the product the complainant has availed a loan from the 5^th opposite party.  The complainant had paid all the EMIs as per the loan agreement and he obtained NOC from 5^th opposite party on 28/08/2019.  At the time of entering into the loan agreement, 1^st and 2^nd opposite parties informed him that the product is having a valid insurance coverage known as Bajaj Product Insurance.  After purchasing the product, the complainant requested the 1^st and 2^nd opposite parties to provide him with the insurance, but they did not give the particulars to him. 

          Within one month of its purchase, i.e. on 13/04/2018, the Tablet become defective; its display disappeared and was not functioning.  The entire product stopped functioning i.e. even the power switch stopped responding.  The complainant entrusted the product for repair to the 6^th opposite party, the authorised service centre of 3^rd and 4^th opposite party. 

          At the time of entrustment, he paid Rs. 3,000/- as advance.  Later the 6^th opposite party informed that its spare parts are not available and when it is available, the product will be repaired and returned.

          Later the 6^th opposite party had given an estimated cost of repair amounting to Rs. 9,385/- and 1^st and 6^th opposite party assured that the amount spent for repair would be reimbursed by the insurance company.  The complainant paid the amount in order to repair it.

          The complainant never misused the product and the defects in the product are only due to its manufacturing defect.  The product is well within the warranty period and as the complainant has not committed any breach of warranty, he is entitled to be indemnified by 5^th opposite party.

          The collection of Rs. 9,385/- by the 6^th opposite party amounts to deficiency in service and all other opposite parties are vicariously liable to compensate the complainant for the loss occurred to him due to the acts and omissions committed by the opposite parties.  The complainant has suffered mental agony because of this.

      So he approached this Commission for getting an order

1. Directing the opposite parties to pay Rs. 9,385/- along with 7% interest from 15/12/2018 till realisation.
2. To pay Rs. 25,000/- as compensation for the deficiency in service on the part of opposite parties and for the mental agony and harassment undergone by the complainant.
3. To pay Rs. 15,000/- as cost and all other incidental reliefs which the Forum finds fit and proper to grant.

2.   Complaint was admitted and notices were issued to all the opposite parties.  Eventhough vakalath was filed on behalf of 1^st and 2^nd opposite parties, they did not file version.  Opposite parties 3, 4 and 5 entered appearance and filed their version.  Even after receiving notice, 6^th opposite party did not appear and they were set ex-parte.   

3.   Contentions raised by 3^rd and 4^th opposite parties in their version is as follows

      The opposite parties admit that the complainant had purchased Tablet from 2^nd opposite party on 14/03/2018 for Rs. 12,690/- but denies the contention that he had used the product with care and caution as per warranty conditions.  The product is manufactured by 3^rd and 4^th opposite parties and it has one year warranty and the complainant had availed a loan to purchase it and has insurance policy from 5^th opposite party.

          On 13/04/2018, the handset was brought to the service centre in connection with the issue of no power and not functioning.  The said complaint was duly registered vide job card and after examination, it was found that liquid logged and thereby caused damage on PBA, OCTA and Battery.  It occurred due to careless use by the complainant and not due to any manufacturing defect.  Since the damage is due to water logged, it can be repaired only on chargeable basis.  It is a physical damage and the complainant is not entitled to any free of cost service even if there is warranty.

          The unit had a valid insurance policy issued by 5^th opposite party; they alone are liable to indemnify the complainant for all loss and damages.  There is no deficiency in service on the part of these opposite parties and they are not liable to pay any amount of compensation to the complainant.  So the complaint has to be dismissed against these opposite parties.      

4.   5^th opposite party in their version contended that the complainant has made Bajaj Finserv as the 5^th opposite party, whereas the loan has been financed by Bajaj Finance Ltd.  The 5^th opposite party admits that the complainant had availed a loan from the opposite party towards the Samsung Mobile Phone at 0% interest along with the insurance from the insurance company.  The loans were closed and NOC was duly issued to the complainant.  The opposite party is a mere financier and is providing financial assistance to the needy people for various purposes and it has no role in either issuing any insurance policy as well as approving or rejecting any insurance claim.

          Insurance is an agreement between the insurer and the customer and there is no privity of contract with the Finance company.  5^th opposite party has no role to play in the insurance claim of the complainant and the complainant has no cause of action against this opposite party.  The complaint is bad for non-joinder of necessary party as the Insurance Company is not made a party.

          Upon enquiry from CPP Assistance Service Pvt. Ltd., opposite party came to know that the insurance claim of the complainant was rejected by the company for the reason that complainant’s product was found to be defective in 2018.  The warranty of the product with opposite parties 1 to 4 is for 4 years i.e. from 2018-2022.  The product is under manufacturer warranty and the insurance company cannot register or process the claim.  Extended warranty of the complainant starts from November 2022 to November 2023 and the insurance company (HDFC Ergo) can only at that time register and process the claim against defective/damaged product.  The certificate of Insurance clearly states the details of manufacturer warranty and extended warranty.  5^th opposite party cannot be held liable for any claim made by the complainant as there is no cause of action against them.  So the complaint has to be dismissed against them.

5.   From the pleadings of both parties, the following points arise for consideration

1. Whether the complainant is entitled to get the product repaired under warranty?
2. Whether there is any deficiency in service on the part of opposite parties?
3. Whether the complainant is entitled to the reliefs claimed.
4. Reliefs, if any as cost and compensation.

6.   Complainant filed proof affidavit and Ext. A1 to A7 marked.  Marking of all exhibits are objected to on the ground that they are photocopies.  Since the opposite party has no case that the documents are forged or concocted, we find no merit in the objection.  Document sought to be marked as Ext. A8 is a box of Tablet to prove purchase.  In view of the production of Ext. A1 invoice, the box is returned.  Opposite parties 3 to 5 filed proof affidavit.  Exts. B1 to B5 filed from the side of opposite parties 3 and 4.  Exts. B2 and B3 are objected to as they are not legible and their source is not stated.  Eventhough documents of 5^th opposite party were marked as Exts. B4 to B9, they failed to comply the order of this Commission to correct the sequence of marking of document.  Hence the evidence of 5^th opposite party is rejected.  Evidence closed and heard the parties.       

7.  Point No: 1    

      As per the complaint, the complainant purchased a Samsung Tablet from the 2^nd opposite party on 14/03/2018 on payment of an amount of Rs.12,690/-  The product is manufactured by Samsung (i.e. opposite parties 3 and 4).  He availed a loan from the 5^th opposite party for the purchase of the product.  1^st opposite party, at the time of purchase informed him that the product has valid insurance coverage known as Bajaj Product Insurance.

          Within one month of its purchase, the product became defective.  It stopped functioning i.e. even the power switch stopped responding.  He entrusted the product with 6^th opposite party, the authorised service centre of 3^rd and 4^th opposite parties.  The complainant paid an advance amount of Rs. 3,000/- for repair on 13/04/2018.  On 12/05/2018, 1^st opposite party informed that the cost of repair will come to Rs. 9,385/-  On the assurance given by 1^st and 6^th opposite parties that the amount will be reimbursed by the Insurance Company, he paid that amount.  His grievance is that the product is well within the warranty period and he is entitled to get the refund of the amount paid by him.

8.   From complainant’s side 7 documents were marked.  Ext. A1 is the Tax Invoice dated 14/03/2018 showing the purchase of the product.  Ext. A2 is the “Acknowledgement of service Request”.  In Ext. A2, the date is shown as 04/13/2018,

      “Warranty status   – Out of warranty

      Defect Description – Water Damage

      Remark                 – Data Loss”

      Ext. A3 is the ‘Advance receipt’ issued by 6^th opposite party for the payment of Rs. 3,000/-  Ext. A4 is the estimation given by them for repair of the product and Ext. A5 is the Tax Invoice issued for the payment.  The product has 4 years manufacturer warranty and 1 year extended warranty.  

9.   3^rd and 4^th opposite parties contended that the defect in the complainant’s Tablet occurred due to careless handling by the complainant.  On examination of the product in the service centre, they found that liquid logged and there by caused damage to PBA, OCTA and Battery.

          They produced the ‘Acknowledgment of service request’ which is marked as Ext. B2.  It is entirely different from Ext. A2 – ‘Acknowledgment of service request’ issued to the complainant and its contents are indecipherable.             

10. Eventhough 3^rd and 4^th opposite parties alleged that the defect occurred due to complainant’s mishandling and liquid logging, they did not adduce any evidence in support of this.  There was no attempt on their part to cross examine the complainant in order to bring out the veracity of their contention.  The burden is on the opposite party to prove the liquid presence in the ‘Tablet’ as they have raised it; but they failed to prove it.  Since the product is under warranty, the defect has to be cured free of cost by replacing the necessary parts free of cost.  Point No. 1 is decided accordingly.         

11.    Points 2 to 4      

      In view of the findings in Point No:1, the opposite parties 1 to 4 failed to prove that the defect in the Tablet occurred due to liquid presence and they are bound to replace the defective parts free of cost. 

          So there is deficiency in service on the part of the opposite parties in collecting service charge amounting to Rs. 9,385/-  The product became defective within one month of its purchase.  This would have caused mental agony and financial loss to the complainant and opposite parties are liable to compensate the complainant for that.  5^th opposite party being the Financier is exonerated from liability.  Eventhough the complainant contended that the product is having insurance coverage, he has not produced any documents relating to this.

12. Further Ext. A1 invoice issued by 1^st and 2^nd opposite parties contain the subscript ‘Goods once sold cannot be returned or exchanged’.  This subscription is in violation of G.O(P) No.60/07/FCS and CA dated 03/11/2017 and validity of this Government Order was upheld by the Hon’ble State Consumer Dispute Redressal Commission in Kerala Duty Free Shop CIAL Vs Manohar and others in FA924/2012.

      Hence 1^st and 2^nd opposite parties are liable for unfair trade practice.

      In the result complaint is allowed

1. We direct the opposite parties 1 to 4 jointly and severally to pay Rs. 9,385/-, being the amount collected as service charge together with 7% interest from 05/12/2018 till realization and
2. To pay Rs. 15,000/- for the deficiency in service and mental agony suffered by the complainant and Rs. 10,000/- as cost of this litigation
3. 1^st and 2^nd opposite parties are directed jointly and severally to pay Rs.10,000/- for their unfair trade practice.

The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.

Pronounced in open court on this the 15^th day of May, 2023.

                                                                                            Sd/-

                                                                                    Vinay Menon V

                                                                               President                                              

                                                        Sd/-

              Vidya.A

                             Member   

                                                                                              Sd/-

                                                                                  Krishnankutty N.K.

                                                                                           Member

APPENDIX

Documents marked from the side of the complainant:

Ext. A1: Invoice issued by The Chennai Mobiles dated 14/03/2018.

Ext. A2: Acknowledgment of service request dated 13/04/2018.

Ext. A3: Advance receipt issued by Blue Point dated 13/04/2018.

Ext. A4: Estimation for repair dated 12/05/2018.

Ext. A5: Invoice issued by Samsung Authorised service centre dated

              05/12/2018.

Ext. A6: No Due Certificate issued by Bajaj Finance Ltd. dated 28/08/2019.

Ext. A7: Loan Account Statement as on 28/08/2019.

Documents marked from the side of opposite parties:

Ext. B1: Power of attorney issued by Samsung India Electronics dated

              13/01/2020.

Ext. B2: Acknowledgment of service request.

Ext. B3: Warranty Card.

Witness examined from the complainant’s side:

Witness examined from the opposite parties side:

Cost- Rs. 10,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.