D.O.F:15/02/2021

                                                                                                       D.O.O:03/03/2023

IN THE CONSUMER DISPUTES  REDRESSAL COMMISSION, KASARAGOD

CC.44/2021

Dated this, the 3^rd day of March 2023

PRESENT:

SRI.KRISHNAN.K                          : PRESIDENT

SRI.RADHAKRISHNAN NAIR.M   : MEMBER

SMT.BEENA.K.G                              : MEMBER

Haseena A.K,

W/o Abdul Basheer,

Uliyathadka,

National Nagar,                                                                    : Complainant

Shiribagilu P.O,

Kasaragod

(Adv. Harshitha.K.M)

And

1. K Mobile Store

Malabar Square Building,

New Bus Stand,

Kasaragod

2. Samsung India Electronics Pvt.Ltd,                     : Opposite Parties

Head Office, 20^th -24^th Floor,

Two Horizon Centre,

Golf Course Road,

Sector-43, DLF PH V,

Gurgaon, Haryana – 122 202

(Adv.C.V. Narayanan for OP No.2)

ORDER

SRI.KRISHNAN.K     :PRESIDENT

1.      The case of the complainant is that she purchased a Samsung Mobile Model Galaxy A51-6 GB/28 GB on 02/09/2020.  While in use mobile device suffered non- functioning.  Handed over to service center they serviced.  During February first week,repeated defect in its function.  Display not clear.  But Opposite Party did not care to repair or service it.  The complainant seeks replacement or refund of money paid, namely Rs.16,655/-
2.      The Opposite Party No.1 filed its Written Version, hand set is covered by warranty. The complaint is bad for non- joinder of necessary party. 
3.      Later manufacturer is impleaded as Opposite Party No.2.  Complaint is amended putting forth a claim that phone was used for study purpose of her children in online classes.   Its data is lost; product is substandard, unfair trade practice, not fit for use.  Amended prayer shows claim for Rs.24,202/- being the amount paid to mobile hand set.  Compensation of Rs.50,000/- claimed for mental agony.
4.      The Opposite Party No.2 filed written version.  The allegation in the complaint is denied, but admitted that they are bound to service during warranty period.  But denied liability to replace or refund its price since no manufacturing defect.  Defects due to physical damage, tampering mishandling or liquid logged or water logging which are not covered.  Service of phone was attended, delivered hand set back on 14.01.2021 replacing LED display, issue settled.  Opposite Party still ready to provide service to complainant as per warranty terms.  Service request acknowledgment is produced and marked as Ext.B1 and B2 both dated 21/06/2021.  It covered by warranty as per terms and conditions there in.  There is no Deficiency in service, no manufacturing defect.  The complainant did not entitled to refund of its price and the complaint is liable to be dismissed.
5.      The complainant filed proof affidavit, opposite party cross examined the complainant.  Ext.A1 and Ext.C1 marked from her side.  Also Ext.B1 and B2 marked from Opposite Party’s side.
6.      In view of rival contentions, following points arise for considerations.

1. Whether complainant entrusted mobile phone for service with Opposite Party for repair? Whether mobile entrusted with Opposite Party is returned after repair to complainant?
2. Whether complainant is entitled for replace or refund of its price?
3. Whether complainant is entitled for compensation? If so for what reliefs?

7.      The complainant in her complaint and chief affidavit specifically contented that she has entrusted her Samsung Mobile Phone for repair with the Opposite Party after four months of its purchase.  The Opposite Party put a suggestion that problem to mobile phone set is due to mishandling of phone.  The Opposite Party denied any deficiency in service on their part.
8.      The Opposite Party expressed their readiness and willingness to undertake the service to the hand set provided it is entrusted to them.
9.      The complainant has no case that hand set is still with the Opposite Party as on 04/01/2021.  The Opposite Party admitted the fact that the complainant entrusted him Samsung Mobile hand set for repair and also returned after service point No.1 is held in favor of complainant.
10.       Considering the fact that the complainant has got a case that mobile hand set suffer manufacturing defect.  She gains the support of Ext.C1 report.  It is not seen whether any notice is given to Opposite Parties while inspecting the mobile set.  Date of inspection not mentioned.  Qualification of expert is not stated in the report either technical or experience in the filed in noting manufacturing defect of mobile phone there in.  Report is silent as to which specific part is noted.  Ext.C1 will not help to prove manufacturing defect.  Prayer to replace or refund if its price is thus rejected.
11.      There is no pleadings by the complainant or evidence with regard to the role or special knowledge of manufacture of poor or improper dealing of the dealer, and liability cannot be imposed on manufacturer for deficiency in service by dealer.  Supported by recent ruling of Honorable Supreme court in Tata Motors Ltd Vs Anonio Paulo vaz and another- case No. Civil Appeal No.574/2021 in Justice U.V. Lalith, Hemant Gupta, Ravindra Bhat.  Citation: Live Law 2021 Sec 105

But having known the grievance of the complainant due to poor display and its non- working properly, Opposite Party No.1 did not come forward to collect the mobile through its service center of Opposite Party No.1 and not caring to repair or attend of its services as and when approached by the complainant and without justifiable reason amounts to deficiency in service and negligence on the part of Opposite Party and complainant is entitled to compensation for the same and she is also entitled to cost of litigation.The commission is of the view that the complainant is entitled and opposite party is liable to return the Samsung J2 Mobile hand set received by the Opposite party to the complainant after necessary repair and service and without insisting payment of any service charge with 15 days of the receipt of the order.The Opposite party No.1 is liable to pay Rs.10,000/- as compensation for deficiency in service and negligence of Opposite Party No.1 to the complainant and also liable for cost of the litigation fixed as Rs.3,000/-.The Opposite Party No.2 is exonerated from any liability as aforesaid.

In the result complaint is allowed in part, the complainant still having the complaint of mobile handset not working properly and hence complainant directed to produce mobile handset to Opposite Party No.1 and Opposite Party No.1 is liable to return the mobile handset after repair to the complainant within 15 days of its receipt defect free as above.The Opposite Party No.1 is also liable to pay a sum of Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.3,000/- (Rupees Three Thousand only) as litigation costspayable by the Opposite Party No.1 to the complainant within 30 days of the date of receipt of the order.Filing compliance complainant is entitled to gain interest thereof at 8% per annum from the date of default to the date of payment.

  Sd/-                                                  Sd/-                                          Sd/-

MEMBER                                    MEMBER                            PRESIDENT

Exhibits

A1: Tax Invoice

B1: Acknowledgment of service request dated: 21/06/2021

B2: Acknowledgment of service request dated: 21/06/2021

C1: Certificate issued by mobile phone service center

Witness Cross examined

PW1: Haseena .A.K

     Sd/-                                                Sd/-                                          Sd/-

MEMBER                                    MEMBER                            PRESIDENT

Forwarded by Order

Ps/                                                                      Assistant Registrar