DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 15^h day of November, 2023                                                                                               

                           Filed on: 08/01/2018

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                  

C.C. NO. 21/2018

COMPLAINANT

Salim P.s., S/o. Sulaiman, Pooncheriyil House, H.No. XII/298A, Payipra, Mulavoor, Muvattupuzha.

VS

OPPOSITE PARTIES

1. Samsung Service Centre, 1^st Floor, XIX/151, Palupallath, Aluva 683101.
2. Manager, Adam Traders, Nr. Vettukattil Hospital, Muvattupuzha

F I N A L      O R D E R

D.B.Binu, President:

1. A brief statement of facts of this complaint is as stated below:

This complaint is filed under Section 12(1) of the Consumer Protection Act, 1986. The complainant purchased a J2-2017 model mobile phone made by Samsung for INR 7,000 for his wife on December 12, 2017, from the second opposite party. Unfortunately, from the outset, the phone was unable to make calls or access services. The complainant sought assistance from the second opposite party, who, after an inspection, identified a significant defect and promised a replacement upon presentation of the required documents. On December 26, 2017, the complainant returned with the documents and phone box, only to be told that the replacement would not be provided without the original inner cover of the phone. During this encounter, a technician named Rahul was present. The complainant reported this issue to the company's regional manager via phone call, but the manager was elusive and unhelpful, and the phone was ultimately returned unrepaired.

The complainant had trusted the reputation and warranty assurances of the retailer, but faced with a technical malfunction from Samsung, they received unsatisfactory service and were given baseless excuses instead of a solution. The customer is now demanding either a new phone or a refund of the purchase price from the opposite parties and is seeking compensation of INR 3,000 for the case costs. They request that appropriate actions be taken to address this matter.

2).  Notice

          The Commission issued a notice to the opposite parties, which was duly received by them. The first opposite party submitted their version. Since the second opposite party did not file a version, the proceedings have been set to continue ex parte with regard to them.

3). THE VERSION OF THE FIRST OPPOSITE PARTY

          The complainant did not include the phone's manufacturer as a party in this case. Legally, the manufacturer is responsible for replacing the phone. Therefore, this Commission should not have this case pending before it, and it is requested that the case be dismissed. The complainant took the phone to the service center for repair. Despite being asked to bring the phone's outer and inner covers, along with all relevant documents, the complainant later reported these items as lost, absolving the service center of the responsibility to replace the phone. This responsibility falls to the manufacturer. The service center clarified to the complainant that an exchange could not be made according to the company's policy. The complainant said he could bring the box on December 27, 2017. However, he did not do so, claiming it was lost, and the service manager explained that only repair services, not the box, could be provided. The complainant insisted on a replacement instead of repair services and eventually retrieved the phone from the service center of his own volition. Subsequently, a complaint was filed against the manager at the Aluva police station. The complainant, being a police officer, allegedly misused his authority, and the manager was coerced into handing over the phone at the police station. The refusal to provide a replacement is because the company did not receive all the parts originally included in the phone's box. There has been no service deficiency on the part of the service center. Thus, the dismissal of this complaint is requested.

4) . Evidence

The complainant, in this case, has not submitted a proof affidavit but five documents:

1. A copy of the tax invoice.
2. A copy of the service agreement.
3. A copy of the Aadhaar card of the complainant.
4. A copy of the Aadhaar card of the complainant’s wife.

   5) The main points to be analyzed in this case are as follows:

i)       Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant.

ii)      If so, whether the complainant is entitled to get any relief from the side of the opposite parties?

iii)     Costs of the proceedings if any?

6)      The issues mentioned above are considered together and are        answered as follows:

The complainant has been continuously absent since 23-09-2019. The commission has issued a notice to the complainant to appear and to furnish evidence. The notice was sent to the complainant on 12-04-2021. Despite being given the opportunity, the complainant neither filed the proof affidavit nor appeared before the commission thereafter. There have been several chances provided to the complainant to proceed with the case, but there has been no interest shown in doing so.

Due to the complainant's persistent absence and lack of evidence, the commission has no choice but to dispose of the complaint based on the available evidence. Consequently, the commission proceeds with the disposal of the complaint.

In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.

In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:

“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it.”

The legal maxim "vigilantibus non dormientibus jura subveniunt" (The law assists those who are vigilant, not those who sleep.)  is highly significant in consumer cases. It stresses the importance of being proactive and diligent in protecting one's rights and interests in legal matters. By actively safeguarding their rights, individuals are more likely to receive legal support compared to those who neglect their responsibilities. In consumer cases, this maxim emphasizes the need for consumers to be vigilant and attentive when facing potential legal issues, ensuring they protect their rights as buyers. However, it is essential to mention that in this specific case, the complainant did not attend any hearings before the commission or submit an affidavit of evidence after filing the complaint.

                  After careful consideration, the case presented by the complainant is considered to be without merit. As a result, the following orders have been issued.

ORDER

Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.

Pronounced in the Open Commission on this the 15^th day of November, 2023.

Sd/-                     

D.B.Binu, President

          Sd/-

V. Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded/By Order

Assistant Registrar  

Despatch date:

By hand:     By post                                                  

kp/

CC No. 21/2018

Order Date: 15/11/2023