Date of Filing:31/01/2019

Date of Order:06/06/2020

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 06^thDAY OF JUNE 2020

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI.Y.S. THAMMANNA, B.Sc, LL.B., MEMBER

SMT.SHARAVATHI S.M, B.A, LL.B., MEMBER

Vs

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT.

1.     ThisComplaintisfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not selling a quality TAB by OP.No.1 to 3 and not defective manufacturing of the TAB by OP.No.4 and 5 and for refund of cost of Rs.9,500/- paid towards purchase of the said TAB along with interest at 24% per annum,and Rs.2,00,000/- as damages for suffering mental agony, harassment and  Rs.3,00,000/- towards travelling expenses and OPsmaking his time waste and Rs.20,000/- towards litigation expenses and Rs.10,000/- towards notice charges and for such other reliefs as this Hon’ble Forum deems fit. 

2.     The brief facts of the complaint are that:Complainant on 19.07.2018 purchased SAMSUNG TAB AT T285NW bearing Sl.No.352155091080099 from OP.No.1 shop by paying Rs.9,500/- which was manufactured by Op.No.4 and 5. It is contended that, after the purchase of the said TAB, within a period of one week, the TAB was facing some problem in receiving the signals, DATA loading and the poor quality of photos. Though it is acolourTAB, the pictures were appearing black and blue and was not  properly visible. He contacted OP.No.1 to take back the tab and to refund their money or to provide a higher version of the TAB by receiving the difference in cost. Op.No.1 reponded his request and informed him that it will get repaired and it cannot refund the  money or replace the TAB. After lot of negotiation, ultimately agreed to get it properly repaired and received the same.  10 days after, the same was returned. But again it was having battery charging problem, and switched off suddenly and it was again taken to OP.No.1 to 3 to get it repaired.  The same was repaired and handed over to complainant and in the evening on the same day, though the switch was in on condition, complainant could not make any call from the said tab or to receive call due to non-ringing and also not showing the display of ringing mode and other modes. 

2.     Even the messages could not be received. Again complainant took it to OP No.1 to 3 and workers of OP repaired the same and while handing over informed that there is a problem in the JIO network.  The JIO network person were also consulted and inserted another SIM and it worked for only one day. Again he could not make call and unable to receive call and “not registered on network” was displaying on the screen.  There were so many problems in the set which was though attended by men of OP.No.1 and 3, could not get it solved.  On 06.09.2018 fed-up with the repeated visit to OP.No.1 to 3 for repair of the said tab, he requested Op.No.1 to 3 to refund the bill amount for which, Op.No.1 to 3 declined. They took the TAB along with the original Bill on the ground that it is required to be sent to the company. The workers of OPNo.1 to 3 refused to give the acknowledgement for having received the TAB and the original bill.But later provided only product Entry Pass and declined to mention the receipt of the TAB.

3.     In fact, they were adamant and thrown the set on the table and informed the complainant to do whatever he want.  Ultimately, they issued an acknowledgment regarding receipt of the TAB and original Bill. On08.09.2018 he received a call from OP No.1 to 3 that the TAB was ready and he can visit and take back the said TAB. When he went there and checked, the same the same problems were persisting.   On 15.09.2018 again he visited OP No.1 to 3 shop and tried to operate the TAB with two or three SIMS. Inspite of it, it did not work. 

4.     The TAB was purchased for the purpose of reading the materials of LAW in a big font. Due to non-working of the TAB, he lost the data stored and could not use the same affectively. OP No.4 and 5 are the manufactures have manufactured a defective TAB with low configuration and low technology and have together colluded and committed fraud and cheating by selling a defective electronic gadget.Hence this complaint.

5.     Upon service of notice, OP No.1 and 3 remained absent and placed exparte. On 18.03.2019. On 8.4.2019 OP.No.1 filed an authorization letter along with version whereas he did file any application to set aside the order keeping itexparte. Hence opportunity was given to OP.No.1 to file necessary application to get set aside the exparte order. Inspite of it, OP.No.1 did not file application and hence remained exparte and forum passed an order that the version filed cannot be considered.

6.     OP.No.4 and 5 appeared through their advocate and filed version signed by OP.No.5 which was duly adopted by OP.No.4 by filing a memo.

7.     In the version filed by OP.No.5, it is contended that, the complaint is baseless, devoid of merits, filed with mischievous intention to enrich himself, there is no just or reasonable cause for filing the complaint and it is an abuse of process of law and same is liable to be rejected on account of non-joinder and misjoinder of necessary parties and proper parties.

8.     Op.No.4 is shown in cause title are Samsung R &D development which is nothing to do with the litigation and hence it not a proper party. Complainant has not produced the copy of the service job to substantiate the allegations made and hence liable to be dismissed.  It is not within its knowledge the purchase of the SamsungTab by the complainant on 19.07.2018. Complainant also failed to produce original invoice copy or the Xerox copy of the same to believe that he has purchased the Samsung Tab. He has failed to establish that, he is a consumer under the provisions of Consumer Protection Act. OP.No.5 is also not aware as to the assurance given by OP No.1 to 3 regarding its repair and after repair the same is in good condition.  No supporting evidence is produced and complainant ought to have sent the said TAB to the authorized service center. No acknowledgement receipt is produced by the complainant to evidence that he approached the dealer within one week and handed over the TAB to the dealer for rectification of the issues alleged. 

9.     No proof has been produced by the complainant to show that the said tab was defective and getting problems while operating and also visiting OP No.1 to 3 shop several time to get the issues sorted.  In view of non-production of the supporting documentary evidence,complainant is not entitle for any of the reliefs claimed. Complainant has acted contrary to the company warranty policy and ought to have sent the same to the authorized dealer.

10.   Complainant never visited service center personally explained the existence the problems in respect of the TAB.  On 18.09.2018 authorized service center the received TAB through the dealer and upon receipt of the same, the service engineer could not find out any issues. Further under the service policy,the TAB was within the warranty period and the service center carried on software work free of cost and handed over the TAB to the dealer and the dealer has acknowledged job satisfaction at the time receiving the same. In view  of this, complainant is estopped from making allegations that the issues are resolved.  In the service job sheet, it was clearly mentioned in Condition No.8 the customer should ensure backup stored in their TAB or mobile and company cannot be responsible for the data loss. Hence OPs are not responsible for the loss of the data.  Neither the complainant nor the dealer of the TAB reported the issues to the company.  It is only on 18.09.2018, the service call was attended.  They have denied that they have manufactured a defective TAB and sold through  OP No.1 to 3. Complainant has failed to produce cogent and independent evidence to establish the manufacturing defect in the TAB. Further denying all the allegation made in the complaint against it, contended that complainant is not entitle for any of the reliefs claimed in the complaint and prayed to dismiss the complaint.

11.   In order to substantiate their case, complainantand OPsfiled their  affidavit evidence which is nothing but repetition of the contents of the complaint and the version and got marked the documents. Perused the same.Heard the arguments.  The points  arise for our consideration are:-

                   (1)   Whether the complainant has proved

deficiency in service on the part of the O.Ps?

(2)  Whether the complainant is entitled to

the relief prayed for in the complaint?

12.   Our answers to the above points are:-

POINT 1: In the Affirmative

POINT 2  :       Partly in the Affirmative

                        For the following:

REASONS

POINT No.1:-

13.   We have perused the complaint, version, affidavit evidence of theparties and the documents filed by them. It is not in dispute that the Complainant on 19.07.2018 purchased SAMSUNG TAB AT T285NW bearing Sl.No.352155091080099 from OP.No.1 shop by paying Rs.9,500/- which was manufactured by Op.No.4 and 5. It is contended that, after the purchase of the said TAB within a period of one week the TAB was facing some problem in receiving the signals, DATA loading and the poor quality of photos. Though it is colour mobile the pictures were appearing black and blue and was not  properly visible he contacted OP.No.1 to take back the above said and to refund their money or to provide a higher version of the TAB by receiving the difference in cost. Op.No.1 reponded his request and  informed him that it will get repaired and he cannot refund the  money or replace the TAB.

14.   Though the OPs have taken up the contention that, the complainant has not produced document for having purchased the TAB, Complainant has produced the product entry pass issued by OP.No.1 It is mentioned therein that Samsung Tab has been received and it is also mentioned that please present this pass to customer service department for exchanging etc. The copy of MEP to be attached with office copy of the credit. Further complainant has produced copy of the receipt for having purchased the TAB which is dated 19.07.2018.  Complainant has paid Rs.9,500/- in all for purchasing the same as per the Tax Invoice.

15.   OPsthemselves have produced Ex R2 which is acknowledgment of service request. In the remark column, it is mentioned as data loss approved, defect of description: no network, warranty status: full warranty. Legal notice is also issued to the OPs through the advocate.  It is mentioned in the letter dated 09.10.2018 by OP that no defects have been observed in the TAB and it not possible for provide any replace or refund in this behalf.  In the warranty documents marked as Ex R2, there is no mentioning of denying the replacement of the set. 

16.   Though there is no concrete evidence placed by the complainant to show that the TAB has inherent manufacturing defect, the sequence from the date of purchase of the TAB its taken into consideration, one can come to the conclusion that there is inherent defect in the manufacturing of the said TAB.  Otherwise within one week from the date of purchase of the TAB, the problems alleged by the complainant could not have arisen.  Further repeatedly the complainant has visited OP No.1 to 3 shop for getting the issues solved. Inspite of it, OP 1 to 3 could not get the matter resolved and hence ultimately OP.1 itself referred the matter to the service center of OP No.4 and 5 which has been amply stated and admitted by OPNo.4 and 5 in their written version. We have to hold that there is a defect in the said TAB manufactured by OP.No.4 and 5 and sold through OP.no. 1 to 3 and same has not been properly repaired to the satisfaction of the complainant who is a consumer/customer. Hence weanswerPOINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

17.   In view of the same,Complainant is entitle for either for refund of the amount he has paid to purchase the said TAB i.e. Rs.9,500/- or for the replacement of the same TAB with same configuration with a new one and of defective free one.  Further the complainant has claimed Rs.2,00,000/- towardsdamages for mental agony and harassment and Rs.3,30,000/- towards, travelling charges, waste of time, compensation, litigation expenses and notice charges which we feel too exorbitant besides having no basis.

18.   When complainant could not use the said TAB for more than one week after the purchase and further sent it for repair to OP No.1, we afraid to come to the conclusion that the complainant has stored data in the said TAB. Further he has undergone mental agony, physical hardship in getting the TAB repaired by visiting several times to OP.No.1’s shop, we feel that the claim in this regard is highly exorbitant and unreasonable and only made to enrich himself without being sufficient cause and reasons. We are of the opinion that,if a sumof Rs.5,000/- towards damages and Rs.5,000/- towards litigation expenses if awarded would meet the ends of justice. Hence we answerPOINT NO.2 PARTLY IN THE AFFIRMATIVE and proceed to pass the following:

ORDER

1. The complaint is allowed in part with cost.
2. OP No.1 to 5 jointly and severally are hereby directed to replace the TAB with a new defective free and same configuration and model Within 30 days from the date of this order failing which OPs shall refund a sum of Rs.9,500/- along with interest at 12% per annum from the date of purchase of the TAB i.e. 19.07.2018 till payment of the entire amount.
3.  Ops No.1 to 5 are jointly and severally directed Rs.5,000/- towards damages to the complainant and Rs.5,000/- towards litigation expenses and other expenses.
4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5.  Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the C.P. Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed corrected and then pronounced by us in the Open Forum on this 6^thJUNE 2020).

MEMBER              MEMBER              PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1:Original product entry pass issued by Op .No.1

Ex P2: Copy of the legal notice.

Ex P3: Postal acknowledgements.

Ex P4: Reply given by OP.No.5

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri N.T. Shibili, Area Service Manager of OP.No.5

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Letter of Authorization.

Ex R2: Copy of the Job Sheet.

MEMBER              MEMBER              PRESIDENT

A*