IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated the 30th day of November 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 230/2021 (Filed on 05/10/2021)
Petitioner : K.K. Joy,
S/o. Late K.J. Kuruvilla,
Kaniyarakathu House,
Ramapuram, Meenachil Taluk,
Kottayam – 686576.
(Adv. Preena Unnikrishnan)
Vs.
Opposite parties : (1) The Proprietor,
New Mobile Spot 20/1471
Moozhayil Kurisupally Jn
Pala - 686575
(2) The Proprietor,
Samsung Customer Service
Centre, Xx/426/b,
Manarkattu Building,
Pala – 686575
(3) The Managing Director,
Samsung India Electronics Pvt.Ltd.
20th to 24th Floor
Two Horizon Centre,
Golf Course Road, Sector – 43
DLF PH –V Gurgaon,
Haryana – 122201
(Adv. Manu J. Varappally)
(4) The Managing Director,
DMI Finance Pvt. Ltd.
20th to 24th Floor
Two Horizon Centre,
Golf Course Road, Sector – 43
DLF PH –V Gurgaon,
Haryana – 122201
O R D E R
Sri. Manulal V.S. President
Case of the complainant is as follows:
The first opposite party is mobile phone selling and service shop of various phones. As per their direction complainant purchased a Samsung mobile phone model no. Sm- A315FZK1INS on 25-9-2020 for a price of Rs.20,169/-. The complainant gave Rs.10,700/- as ready cash and availed Rs.9,469/- as loan from the Samsung finance company (DMI Finance Ltd) with 6 EMI of Rs.1,615/- They also collected Rs.1200 towards their service charges to the loan. The said phone started showing complaints within one week. As per the direction of the first opposite party, the complainant approached the second opposite party, which is the authorized service center of Samsung phones. The complainant was informed by the second opposite party that the audio failed due to manufacturing defect. They retained the phone by stating that the parts have to be brought from Delhi and it will take two or three weeks. After one week when the complainant enquired about the phone second opposite party informed that it will take a further one month to get parts from Delhi. The complainant purchased the phone from the first opposite party with one year replacement warranty. So the complainant demanded the replacement of the phone or refund of the price of the phone. The second opposite party gave a letter to both the first and third opposite parties to
replace the phone or refund the price.
Though the complainant approached the first opposite party to replace or refund the price of it, the first opposite party denied his demand and informed him that only repair is possible. The complainant waited for 2 to 3 weeks for repairing or replacing or refunding the price of the phone, but no response from the first to third opposite parties. On 8-2-2021, the complainant issued a legal notice to the first to third opposite parties to replace the phone or refund the amount and also demanded to the third and fourth opposite parties to stop ECS collection for EMI from the complainant’s bank account 43503070002122. But they did not respond for 4 months and also sent ECS to the complainant’s bank which caused heavy financial loss to the complainant. They also sent each of 6 EMI’s ECs collection many times even in a month, which caused to occur heavy penalties to the complainant. The penal liability sustained to the complainant due to the ECS collection of EMI as of 13-4-21 is Rs.7,619.48 and it rises to Rs.18,536.48/- on 9-9-21 and on 24-9-21 it became Rs.19,765.48. On 16-3-21 the third opposite party sent a DD for Rs.20,169/- towards the refund price of the phone. The financial liability of the complainant is cumulating day by day due to the mischievous and revengeful activity of all the opposite parties. The complainant is a member of MACTA. The JK international brand holding company is a start-up business firm of the complainant and he is the proprietor. The failure in working of the phone caused a heavy financial income loss of around 2 lakhs to the complainant, especially during the Drisyam part II movie shooting.
The complainant sent a legal notice to the fourth opposite party to stop the ECS collection, but the third opposite party sent a reply to the said legal notice. Deficiency in service of the first and second opposite party also incurred heavy loss to the complainant. As a result, the complainant filed this complaint for an order to direct the opposite parties to pay Rs.19,765/- towards the penal liability sustained to the complainant due to the ECS collection of EMI by the third and fourth opposite parties and to pay Rs.2,00,000/- as compensation along with Rs.50,000/- as the cost of this litigation.
Upon notice, the first and third opposite parties appeared before the commission and filed separate version. Though the notice was served to the second and fourth opposite parties, they did not care to appear before the commission and file version. Hence second and fourth opposite parties were set as ex-party.
Version of the first opposite party is as follows:
The first opposite party is engaged in selling mobile phones of various manufacturers at Pala. The service of mobile phones is done by the authorized service centers of respective manufacturers. The complainant purchased the mobile phone according to his wish after verifying the features of various mobile phones of different manufacturers. The complainant had paid Rs.20,169/- to the first opposite party. The amount of EMI was not known to the first opposite party. The complainant himself approached the fourth opposite party and availed the loan after complying with their formalities. The finance is at the sole discretion of the fourth opposite party and finances availed is a matter between the complainant and the fourth opposite party.
The first opposite party came to know about the complaint of the mobile only when he received a legal notice dated 8-2- 2021. At the time of purchasing the mobile phone itself first opposite party informed the complainant that mobile phone service and warranty has been provided by Samsung Company directly through the second opposite party. The first opposite party had sent a reply to the notice on 23-2-2021 in detail showing the willingness of the first opposite party either for replacement or refund of the mobile if the second opposite party had recommended the first opposite party for such replacement or refund. But the said notice has been returned as unclaimed. The first opposite party never received any letter from the second opposite party, if such a letter has been received, the first opposite party would have returned or replaced the same without any hesitation. The amount paid for purchasing the phone was repaid by the third opposite party on 16-3-2021. The dispute between the complainant and the other opposite parties is not known to the first opposite party. The matters arising out of a contract between the complainant and the fourth opposite party in which the first opposite party is not a party and not liable for the same. There is no deficiency in service from the first opposite party.
Third opposite party filed version contending as follows:
The third opposite party is a well-reputed company having a very large customer base and among other manufacturers, manages the electronic appliances, mobile handset business and has its office at Samsung India Electronics Pvt Ltd, 20th – 24th floor, DLf II horizon Center, golf Cuosre Road Sector 43, Gurgaon.
In the Samsung handset, if some defects are noticed, they will not automatically come within the meaning of the manufacturing defect and there may be a possibility for that defect due to mishandling, improper handling, or any other reasons also which could be rectified and that is why the consumer protection act contemplates expert opinion when the defect is not visible. When the complainant raised a complaint regarding the audio issues in the handset, the
service engineer inspected the said handset and informed the complainant that there were audio damages in the handset which shall be repaired, but the same was denied by the complainant. The service center out of goodwill gesture and also because the complainant was insisting offered full refund of the invoice amount of the said handset, which was also accepted by the complainant. The refund of the handset in the form of D D was refunded to the complainant. The complainant purchased the handset on loan from a third party finance company that is the second opposite party for which monthly EMIs need to be paid on time. That the non-payment of EMIs on time to the second opposite party and the heavy penalty levied on the complainant due to non–payment of EMIs nowhere concerns the answering opposite party. The issues alleged by the complainant were nothing to do with the answering opposite party as they are the manufacturer of mobile phones and do not deal with or provide any finance loan to customers. The first opposite party performed and acted as per industry standards and any negligence or complainant’s fault for non-payment of EMIs, such liabilities should not be transferred to the first opposite party and thus the complaint deserves to be struck down at the preliminary stage itself. The complainant had purchased the handset on 25-9-20 for a consideration of Rs.20,169 and the complainant suppressed the support which he received from the third opposite party. There is no deficiency in service on the part of the third opposite party.
The complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A15. Bindu Jacob who is the proprietor of the first opposite party filed proof affidavit in lieu of chief examination and marked eexhibitsB1 and B2. Sandeep Sahijwani who is the director of customer satisfaction of the third opposite party filed proof affidavit in lieu of chief examination and marked exhibits B3 to B7 from the side of the third opposite party.
On the evaluation of the complaint version and evidence on record, we would like to consider the following points.
- Whether the complaint is maintainable or not?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and cost?
Point number 1
Before dealing with the rival submissions and contentions advanced by the learned advocate appearing for the complainant as well as opposite parties, it will be pertinent to point out certain undisputed facts. There is no dispute that the complainant purchased a Samsung mobile phone model no. Sm-A315FZK1INS on 25-9-2020 for a price of Rs.20,169/- by availing financial assistance of Rs.9,469/- from Samsung finance (DMI finance Pvt Ltd). There is also no dispute that there were audio damages in the handset and on 16-3-21 the third opposite party sent a DD for Rs.20,169/- towards the refund price of the phone.
The specific case of the complainant that the phone started to show the complaint and the same was entrusted to the second opposite party but the refund of the same was delayed by the opposite parties. He further alleged that though he had sent a lawyers notice to the third and fourth opposite parties not to deduct any amount from his bank account towards the repayment of the loan which was availed by him for the purchase of the defective phone, the third and fourth opposite parties continued to deduct the EMIs from his account and thereby caused financial loss to him.
Complaint was resisted by the first and third opposite parties that the dispute between the complainant and the fourth opposite party was not known to them.
Exhibit A1 is the tax invoice issued by the first opposite party to the complainant for an amount of Rs.20,169. It is proved by exhibit A2 that the said mobile phone was entrusted to the second opposite party on 14-10-2020 with a complaint of sound not clear sometime during the call. Admittedly the refund of the price of the said phone was done by the third opposite party by exhibit B5 DD dated 10-3-21. Though the subject phone is handed over to the authorized service center of the third opposite party on 14-10-2020, the third opposite party neither in version nor in proof affidavit disclosed the date on which they inspected the said phone and the date on which they received the request from the second opposite party. The third opposite party did not give any sufficient explanation for the delay of 5 months caused in refund of the price of the defective phone. Without any proper explanation and sufficient reason, the third opposite party has no right to retain the price of the phone which admittedly has an inherent manufacturing defect. The third opposite party neither in the version nor in the proof affidavit stated the terms and conditions of the warranty regarding the time stipulated by them for the refund of the price of the product. The manufacturer of the product is bound to discharge their obligation under the warranty offered by them. The manufacturer of a defective product is under a bounden duty to either replace the product or to refund the price of the same within a reasonable time. The purchaser of a product has every right to get redress his grievance under warranty offered by the manufacturer within a reasonable time. He could not wait for the mercy of the manufacturer to get his grievance redressed under the warranty. The mere refund of the price of a defective product after a long time will not exonerate the manufacturer from deficiency in service. Therefore, we are of the opinion that the third opposite party has committed deficiency in service by causing the delay of 5 months to refund the price of the defective mobile phone to the complainant.
Another contention of the complainant is that though he had sent a lawyers notice to the third and fourth opposite parties not to deduct any amount from his bank account towards the repayment of the loan which was availed by him for the purchase of the defective phone, the third and fourth opposite parties continued to deduct the EMIs from his account and thereby caused financial loss to him. It is submitted by the complainant that the penal liability sustained to the complainant due to the ECS collection of EMI as of 13-4-21 is Rs.7,619.48/- and it rises to Rs.18,536.48/- on 9-9-21 and on 24-9-21 it became Rs.19,765.48/-. On perusal of exhibit A12 which is the statement of account, we can see that the fourth opposite party sent the ECS mandate for collection from 5-11-2020 to 21-1-21. It is further proved by exhibit A12 that the complainant had failed to keep the required amount in his bank account to honour the ECS mandate. No doubt the person who availed the loan from a financier by executing ECS mandate for repayment of the loan is bound to keep the required amount in his bank account. It is further proved by exhibit A13 that the banker of the complainant had levied Rs.16,080/- as ECs return charge and Rs.2,456/- for non- maintenance of minimum balance in his account. Thus it is very clear that the complainant failed to keep even the minimum required balance in his bank account. Moreover, the third opposite party refunded the total price of the mobile which includes the amount which was availed by the complainant from the fourth opposite party by way of a loan. It is pertinent to note that in Exhibit A13 the period for which the penal charges are levied is not mentioned. Therefore we are of the opinion that the contention of the complainant in this regard would not sustain.
Coming to the aspect of compensation we already found that the third opposite party has committed deficiency in service by causing an inordinate delay to refund the price of the mobile phone. Though the complainant produced exhibit A15 to prove that he had lost an opportunity in the Drisyam II movie he did not adduce any evidence to substantiate exhibit A15. The same is marked as subject to proof. Without any corroborating evidence, we cannot consider the document which is marked as subject to proof. No doubt the complainant has suffered much hardship due to the deficient act of the third opposite party for which the third opposite party is liable to compensate. Considering the nature and circumstances of the case we are of the opinion that compensation of Rs.5,000/- will meet the ends of justice.
Thus the complaint is allowed against the third opposite party to pay Rs.5,000/- to the complainant as compensation for the deficiency in service on the part of the third opposite party within 30 days from the date of receipt of this order, failing which the award, amount shall carry 9% interest from the date of this order till realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Tax invoice dtd.25-09-2020 issued by 1st opposite party
A2- Copy of acknowledgement of service request by Samsung
A3 series – Postal receipts (3 nos.)
A4 – Postal receipt
A5 – Postal receipt
A6 series – postal acknowledgement cards(2 nos.)
A7 series – Copy of lawyers notice dtd.08-02-21 addressed to 1 to 3 opposite
parties (3 nos.)
A8 - Copy of lawyers noticedtd.03-03-21 addressed to 4th opposite party
A9 - Copy of lawyers notice dtd.05-08-21 addressed to 4th opposite party
A10- Reply letter dtd.19-05-21 to the lawyers notice by 3rd opposite party
A11- Reply letter dtd.31-08-21 to the lawyers notice by 3rd opposite party
A12- Copy of statement of account dtd.06-09-21 from Canara Bank
A13- Copy of letter dtd.09-09-21 by Canara Bank to JK International Brands
Holding
A14 – Copy of membership card from MACTA
A15- Certificate dtd.15-03-2022 by Muthu S.
Exhibits marked from the side of opposite party
B1 – Copy of lawyers notice dtd.23-02-21 by Adv. Jobin Mathew to
Adv. E.J. Binu
B2 – Returned postal cover marked as ‘unclaimed’
B3 – Copy of power of attorney in favour of Mr.Sandeep Sahijwani
dtd.01-01-21
B4 – Copy of acknowledgement of service request by Samsung
B5- Copy of DD for Rs.20,169/- dtd.10-03-21
B6 – Copy of reply letter dtd.19-03-21 by Samsung to Adv.E.J. Binu
B7 - Copy of POD
By Order
SD/-
Assistant Registrar
