District Consumer Disputes Redressal Commission, Hooghly

PETITIONER

VS.

OPPOSITE PARTY

Complaint Case No.CC/27/2020

(Date of Filing:-10.07.2020)

1. Sri Bilin Pal, residing at Khalisani, Bosepara, Anandamoyeetala,

P.S. Chandannagar, Pin-712136.…..Complainant

    Versus  -

1. The Managing Director,

Samsung India Electronics Pvt. Ltd. having its official address at

2. Managing Director

Reliance Digital, Reliance Retail Ltd. having its official address at

3. Store Manager, Reliance Retail Ltd.

1423 and 1423A,Ground and 1^st Floor

G.T. Road West, Burrabazar, Chandannagar, Hooghly

……..Opposite Parties

 Mr. Debasish Bandyopadhyay, President

Mr. Debasis Bhattacharya, Member

Mrs. Babita Choudhury, Member

PRESENT:                            

                                                    Dtd. 17.09.2024

                                               Final Order/Judgment

DEBASIS BHATTACHARYA:- Presiding Member

Being aggrieved and dissatisfied with the treatment extended by the opposite parties as mentioned above (OP 1and 2 in particular) in the matter of purchase of a cell phone and the post sales services thereof, the instant case has been filed by the complainant on 10.07.2020, u/s 12 of the Consumer Protection Act 1986 involving three opposite parties as mentioned pre-page.

After truncating the unnecessary details, the series of events as depicted chronologically by the Complainant in his petition is as under.

The complainant on 11.08.19 purchased from OP-3 a smart phone of Samsung brand along with accessories, against an exchange of his old mobile phone. The consideration price after adjustment against the said exchange was 15,990/-

However, allegedly three or four days after the purchase, it was detected that the handset was suffering from some inherent battery problem. Resultantly the handset required charging, the frequency of which was alarmingly more than what was actually necessary in normal circumstances. In fact the device was not capable to be operative even for one hour at a stretch.

Having been worried over the issue, the Complainant firstly approached to Reliance Digital Store, Chandannagar Branch but they provided the solace stating that the problem was a natural one. The Complainant continued with the handset for a certain period of time. However in this mean time the Complainant claims to have taken up the issue with customer care wing of OP 1 several times reportedly but there was apparent indifference from the OP 1’s end. The Complainant continued further with the phone for another seven months.

The Complainant’s legal notice dtd.04.03.2020 was a futile exercise as there was no reaction from the other end.

However the petitioner admits that an executive of OP1 made contact with him and advised him over telephone to take up the matter with Service Center of Samsung for resolving the problem.

        Instead of following the said advice the Complainant was firm on his decision that his phone deserved a replacement by a new handset as the defect was detected within the warranty period. On the other hand the OP 1 did not agree to the proposal and pestered him for formatting the handset.

The Complainant claims that at the time of purchase one of the executives of the store of OP 2 gave him one sort of assurance that the handset would be replaced in case of detection of any defect within one year.

Now, having been stridently refused by the OPs in the matter of replacement of the phone, the complainant in the petition brings to focus his worries, anxieties, sufferings and harassment.

Alleged deficiency of service on the OPs’ part compelled the Complainant to file the instant complaint petition.

Consequent upon the same, in the complainant petition, the complainant prays for an order directing the opposite parties either to make payment of Rs.18,490/- or to replace the defective handset.

Besides, the Complainant prays for imposing directions upon OP 1 and OP 2 to pay Rs.1,00,000/ each in favour of him for ‘breach of agreement’ and ‘breach of trust’ respectively.

Apart from the same, further demand is placed by the Complainant for directing the OPs to pay Rs.2,00,000/- for causing harassment and mental agony, to pay further Rs.25,000/- towards litigation cost and any other order or orders which are deemed fit and proper by the Commission.

The Complainant along with his petition has annexed copies of the relevant tax invoice and the legal notice sent to the OPs.

Evidence on affidavit and brief notes of argument filed by the Complainant are almost replicas of the Complaint petition.

Defense case:      At the very outset it will be worth mentioning that the instant case ran ex parte against OP 2 and OP 3. However all the OPs initially filed written version. Eventually OP 1only contested the case by filing evidence on affidavit and BNA.

The OPs in their written version have decorated the complaint petition with usual adjectives and cliches like ‘not maintainable’, ‘baseless’, ‘devoid of merits’, ‘harassive’, ‘frivolous’, ‘speculative’, ‘motivated’, ‘concocted’, ‘false’, ‘fabricated’, ‘oppressive’, ‘scandalous’, ‘vexatious’, ‘imaginary’ etc., etc. in a routine manner. However no specific reasons have been assigned for importing so many adjectives from English dictionary. It is nowhere mentioned in the written versions that why the complaint petition is scandalous and how it is oppressive and so on.

However, no separate petition has been filed by the OPs challenging the maintainability of the complaint petition. Hence this issue does not deserve any elaborate discussion.

OPs have also gone to the extent of claiming that this Commission has no jurisdiction to try this case so far as territorial jurisdiction is concerned.

This claim can also be brushed aside as the relevant statutory provision states inter alia that ‘A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the cause of action wholly or in part arises.’ 

However in the written versions OPs have denied all the allegations leveled against them by the Complainant.

It is claimed in the written version of OP 1 that the handset did not suffer from any inherent manufacturing defect. However even if there is any manufacturing defect, a proper analysis test report is required to establish the same. It is pointed out that the Complainant has not produced any analysis test report to substantiate manufacturing defect/fault.

In the instant case no expert opinion could be produced by the petitioner.

In this connection reference has been made to section 13(1) (C) of the Consumer Protection Act, 1986, in which the modalities of analysis and test has been prescribed. It is pointed out that in the instant case the complaint petition has been presented without any expert opinion.

Reliance has been made by OP1 on following judicial pronouncements.

It has been held in the case of Jivrajbhai Bhikhabhai  Kakadi vs. Authorised Signatory, Mega Automobile Pvt. Ltd., 2015 (II) CPJ 715 (NC), that as the Complainant could neither prove manufacturing defect by providing any cogent evidence by any authorized expert nor any tests were carried out by the Government laboratory as per section 13(1) (C) of the Consumer Protection Act 1986, there was no manufacturing defect.

Hon’ble National Commission in the case of Ajay Kumar Thakur vs. Jaiswal Motors &Ors. 2017 (II) CPJ 387 (NC) held that in the absence of any credible evidence, that there exists any manufacturing defect the petitioner is not entitled to replacement of the product or refund of the entire purchase price.

Reference has also been made to the Hon’ble National Commission’s observation in the case of Shiv Parsad Paper Industries vs. Senior Machinery Company, 2006 (1) CLT 527 (NC) that ‘An equipment or machinery cannot be ordered to be replaced if can be repaired’.

Further in M.J. Abraham vs. Angel Agencies & Ors., III (2000) CPJ 544 and Videocon International Ltd. vs. K. Viyjayan & ors., 1999(I) CPR 20 it has been held by the Hon’ble National Commission that for replacement of product the defect must be manufacturing and proving manufacturing defects expert report is essential.

OP 1 mentions that OP 2 and OP 3 are not the agent of the answering OP 1 but has ‘principal to principal’ relation with OP 1.

The answering OP 1 admits their liability to give after sales service through their service center in case of manufacturing defect and the same is limited to repair and/or replacement of spare parts, subject to terms and conditions mentioned in the warranty cards. As per the ‘standard service process’ of the answering OP 1, the service related issues are to be brought before the service centers for remedial measures.

It is mentioned in the W/V that whenever a complaint is lodged, with any service center of the answering OP 1, an acknowledgement of service request is issued by the concerned service engineer, which specifies the name and contact details of the customer, the description of the particular defect as narrated by the customer.

If it is detected that that the said handset is under the warranty coverage, the            course of analysis is carried out and necessary repair and /or replacement of spare part(s) is/are carried out on ‘free of cost’ basis.

OP 1 with reference to the complaint petition further points out that in spite of claiming that the  the authorized customer service center was contacted, the Complainant failed to produce documents like acknowledgement of service request.

It is claimed that the Complainant instead of providing any opportunity to inspect the handset in question and render possible services, had outrightly demanded for replacement of the handset in question.

OP 1, along with their evidence on affidavit has annexed copies of the warranty card related to the disputed handset, reply to the legal notice of the Complainant and the corresponding postal track report.      

                                           Issues for consideration

1. Whether the complainant is the consumer as defined in the Consumer Protection Act.
2. Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.                                                                                  
3. Whether there is any deficiency of service on the part of the opposite party.
4. Whether the complainant is entitled to get any relief.

                             Decision with reason

Issue No. 1

The Complainant purchased the mobile handset from one of the OPs against a particular consideration price.

Hence, in view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2 (1) (d) of the Consumer Protection Act 1986 are concerned. The contention of the OPs as presented in their respective written versions that the Complainant is not a consumer is hollow and baseless.

Issue No. 2

Firstly the complainant is a resident within the district of Hooghly and secondly the cause of action, be it partly or wholly arose within the territorial jurisdiction of this Commission.

The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-

Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.

Issue No. 3 and 4

For the sake of convenience, these mutually inter-related issues are taken together.

Materials on records viz. the complaint petition, evidence on affidavit and brief notes on argument filed by the complainant and other connected records are perused.

The Complainant has expressed his grievances over the issue that within a very short span of time since purchase of the phone, certain technical snag related to the charging of battery cropped up.

The Complainant claims to have escalated the issue with the OPs but apart from producing the copy of the legal notice sent to the OPs the petitioner could not produce any document to establish that a formal complaint was lodged with the customer care wing of the OP 1.

It is asserted by the OP 1 that whenever a complaint is lodged with any service center an acknowledgement of service request is issued by the service engineer of the said service centre. The Complainant failed to produce any such acknowledgement of service request. In retaliation to the assertion of the OP 1 also the Complainant has stated nothing.

After detection of the defect, the Complainant instead of lodging the complaint with the authorized service center, approached to OP 2 and OP 3 who were not authorized to render any after sales service.

It appears that before exhausting the possibilities of proper repair/replacement of spare parts of the phone by the authorized service centre of OP 1, the Complainant got stuck to his only demand of replacement of the phone.

At this point, the judgments of Hon’ble National Commission as referred earlier in this order are grossly relevant and applicable.  

Besides, to substantiate the defect of the handset an expert opinion was badly necessary so far as the section 13(1) (C) of the Act is concerned. But in course of the proceedings, the Complainant did not opt for any expert opinion. Moreover the Complainant continued with the phone months after months.

In view of the above and on perusal of the case record and documents, this Commission is of the opinion that deficiency of service or unfair trade practice on the part of the OPs cannot be proved in unequivocal terms.

 Hence, it is     

ORDERED

 that the complaint case bearing no.27/2020 be and the same is dismissed on contest. However there is no order as to costs.

           Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.

The final order will be available in the respective website i.e. www.confonet.nic.in.