O R D E R.

By Smt.  Beena. M,  President (In charge):

This is a complaint preferred   under Section 35 of the Consumer Protection Act 2019.

2. Brief facts of the case are as follows:-  The Complainant had purchased a

Samsung S-20 Ultra 12/128 GB Cosmic Mobile on 23/10/2020, from the 1^st  Opposite Party, manufactured by the 3^rd Opposite Party, for an amount of Rs.98,830/-.  The 1^st and 3^rd Opposite Parties had given one year warranty and lifelong service. The Opposite Parties had advertised in media and made the Complainant believe that the said mobile is the best among the available mobiles and that if any Complaint occurs the same would be repaired without delay and also assured that the set has dual sim and would be supported Nano sim(4FF) and Embedded Sim.  But after the purchase, the Complainant noted that the set has not supported Embedded Sim and the Complainant deposited the said mobile with the 2^nd Opposite Party/ Service Center for repairs.  After that, the 2^nd Opposite Party tried to solve the problem but failed to solve and he assured that they would solve the problem within two days. After two days, when the Complainant approached, the 2^nd Opposite Party told that the set was not supported by Embedded Sim, so it has to be sent to the company for replacement and he assured to replace it within 10 days. On many occasions he approached the Opposite Party. But after 20 days the 2^nd Opposite Party returned the same mobile set to the Complainant without rectifying the defects.  The Opposite parties failed to provide the assured specification to the set and it is an unfair trade practice and it caused heavy damages and inconvenience to the Complainant and the Opposite parties are liable for the same.  Hence this Complaint.   

          3. After the admission of the Complaint, this Commission issued summons to

the Opposite Parties.  All Opposite Parties are entered appearance and filed version.

          4. All Opposite Parties admitted that the Complainant had purchased the said mobile hand set from 1^st Opposite Party and denied other allegations.  1^st opposite party contented that they are only a dealer and the dealer have no role in providing the warranty and services.  It is the manufacturing company and authorized service centers are dealing with the matters in connection with warranty and services.  The 2^nd Opposite Party clearly admitted that the Complainant approached them with complaint of the mobile hand set and they had registered a complaint with 3^rd opposite party through call centre. After getting a reply from the 3^rd opposite party that at that time there was no e-sim facility available in India, the 2^nd opposite party communicated this to complainant and returned the hand set. And further averred that being a service center, they could not give any assurance regarding the facility of a mobile hand set and they are not liable for the complaint.  According to the 3^rd opposite party the product does not carry replacement guarantee and does not carry any warranty only which means product shall be repaired free of cost up to the period of one year from the date of purchase if any trouble crops up.  They further averred that the complainant approached with E-SIM issue but the hand set support E-SIM feature and is completely dependent on OPERATOR DEPENDENT SUPPORT. Samsung model starting from S20 all capable of E-SIM facility but availability for user is depend upon country and carrier support at their end. Users in Samsung Community Forums have confirmed that E-SIM functionality is already enabled. It is important to update the latest software version to use this feature. The 3^rd  Opposite Party  submitted that still they are ready to provide service to the complainant. Therefore, the Opposite Parties prays for the dismissal of the complaint

5. On perusal of complaint, versions and documents the Commission raised the following points for consideration:-

    1. Whether there is any deficiency in service/ unfair trade practice from the

        part of Opposite Parties?

    2. Whether the complainant is entitled to get compensation and what order

         as to cost.

6. Point No. 1 and 2:- For the sake of convenience and brevity all points are considered together.

          7. The Complainant had adduced oral evidence.  He was examined as PW1 and the documents produced were marked as Ext. A1 to A4 and MO1.   On the side of Opposite Parties, no oral evidence adduced.

          8. On perusal of documents and evidences, we find there is no dispute that the Complainant purchased MO1 from Opposite Party No.1 which was manufactured by 3^rd Opposite Party.  The allegation of the Complainant is that the mobile phone is not as per advertisement issued by the Opposite Parties.  Accordingly, the Complainant prayed for replacement of said mobile phone or refund the price along with cost and compensation. It can be understood that the Complainant paid a huge amount and purchased the smartphone with the latest features under the understanding that it has e-SIM facility. Otherwise, such a huge amount would not be spent. 3^rd Opposite Party has submitted that e-SIM facility is now available in India and they are ready to give service to the Complainant if any defects, without any cost.   Here the Opposite Party No.1 and 3 never intimated about non availability e- sim facility in India.  If it was informed by the Opposite Party No. 1, the Complainant could have avoided the purchase of the same.  So, there is deficiency in service and unfair trade practice on the part of the Opposite Party.  Thus, the Complainant has suffered much hardship, mental agony, inconvenience, loss of time and money. Considering the situation of not being able to use the phone after spending a huge amount of money. Hence, the third Opposite party is liable to replace the mobile phone or refund the cost of the mobile. It is admitted fact that the Opposite Party No.2 is authorized service center and the duty of the authorized service center is only to rectify the defects in the mobile and there is no liability of the Opposite Party No.2 either to replace the mobile with a new mobile phone or to pay the purchase amount of the mobile of Rs.98,830/-.  In view of the above said facts, being the Opposite Party No.2 only an authorized service center has no liability either for the payment of the amount or to replace the mobile phone. By relying upon the discussion and facts of the case, we answer this point against the Opposite Party No. 1 and 3.

          In the result the complaint allowed in part, and

1. The 3^rd Opposite Party is directed to replace the MO1 mobile set with an Embedded Sim supporting set to the Complainant or to repay the purchase amount of Rs.98,830/-(Rupees Ninety Eight thousand Eight hundred and Thirty only) with interest @ 8% from the date of purchase till the date of payment.
2. The 1^st  and 3^rd  Opposite Parties are directed to pay Rs.20,000/- (Rupees Twenty thousand only) towards compensation
3. The 1^st  and 2^nd  Opposite Parties are further directed to pay  Rs.7,000/- (Rupees Seven thousand only) as cost of this proceedings.

The Opposite Parties shall comply the order within 30 days of date of this order.  Otherwise, the above said amount shall carry interest @ 9% p.a. from the date till its realization. The above order shall be complied within one month from the date of this order failing which the amount will carry interest @ of 8 per cent.

          Dictated to the Confidential Assistant, transcribed by him and corrected by

me and Pronounced in the Open Commission on this the 6^th day of July 2023.

          Date of Filing:08.12.2020.

                                                                             PRESIDENT (I/C):  Sd/-

                                                                             MEMBER   :        Sd/-

APPENDIX.

Witness for the Complainant:

PW1.          Nizar. K. P.                              Complainant.                 

Witness for the Opposite Parties:

Nil.            

Exhibits for the Complainant:

A1.        Copy of Invoice.                            dt:23.10.2020.

A2.        Copy of Acknowledgment of Service Request.  dt:31.10.2020.

A3.        Copy of Advertisement.

A4.        Warranty Card.          

MO1.      Mobile Phone.

Exhibits for the Opposite Parties:

Nil.

                                                                                                PRESIDENT (I/C): Sd/-

                                                                                                MEMBER    :   Sd/-