Advantage Consumer

	advantageconsumer.com Consumer Protection Council, Rourkela

	Warranty benefits denied, as the customer had failed to produce documentary evidence for having informed the Customer Care Centre. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 1810 OF 2017 (Against the Order dated 01/03/2017 in Appeal No. 92/2016 of the State Commission Rajasthan) SAMSUNG INDIA ELECTRONICS PVT. LTD. & ANR. B-1, SECTOR 81, PHASE 2, NOIDA, GAUTAM BUDH NAGAR. UTTAR PRADESH ...........Petitioner(s) Versus FAROOQ KHAN & ANR. BHARTIYA KI DHANI, WARD NO. 13, RATTANGARH CHURU. RAJASTHAN ...........Respondent(s) BEFORE: HON'BLE MR. PREM NARAIN, PRESIDING MEMBER Dated : 02 Jul 2019 ORDER This revision petition has been filed by the petitioner Samsung India Electronics Pvt. Ltd & anr. against the order dated 1.3.2017 of the State Consumer Disputes Redressal Commission, Circuit Bench, Bikaner, Rajasthan, (in short ‘the State Commission’) passed in Appel No.92 of 2016. 2. Brief facts of the case are that on 28.10.2014, respondent No.1/complainant purchased a mobile handset from respondent No.2/opposite party No.1 for Rs.57,000/- with warranty period of one year. Sometimes in the year 2015, the sensors of the phone developed some defect and it was given to petitioner No.2/opposite party No.3 for repairs through respondent No.2. After repairs, some defect again developed in it and the same was deposited with opposite party No.3 again. Complainant was informed that the phone has some manufacturing defect and cannot be repaired. The mobile was given for repairs/replacement but the opposite parties returned the same handset and refused to replace the same despite the warranty period not having expired. 3. Aggrieved, the respondent No.1/complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Churu, (in short ‘the District Forum’) being complaint No.766 of 2015. The complaint was resisted by opposite party No.1/respondent No.2, who is the dealer from whom the mobile set was purchased. The District Forum vide its order dated 19.05.2016 disallowed the complaint. 4. Aggrieved with the order of the District Forum, the complainant preferred appeal before the State Commission being Appeal No.92/2016 and the State Commission vide its order dated 1.3.2017 allowed the appeal and directed the opposite parties to pay Rs.57,000/- cost of mobile phone to the complainant along with compensation of Rs.5,000/- and litigation cost of Rs.2500/-. 5. The opposite parties Nos.2 & 3 namely, Samsung India Electronics Pvt. Ltd. & Churu Customer Care Centre have filed the present revision petition being aggrieved by the order dated 1.3.2017 of the State Commission. 6. Heard the learned counsel for the petitioners and the learned counsel for the respondent No.1. Respondent No.2 did not appear despite service of notice and none was present on the day of argument. 7. Learned counsel for the petitioners stated that the State Commission has not given any reason for setting aside the order of the District Forum dismissing the complaint. The State Commission has only stated that the mobile was sent for repairs twice during the warranty period and therefore, the mobile has manufacturing defect. This is a very cryptic order and cannot be sustained. In respect of his argument learned counsel referred to following judgments: (1) Vinot Sharma Vs. Hindustan Motors Ltd. & anr, decided on 3.4.2002, (NC). It has been held that: “5. It was also argued that in Mahindra & Mahindra Ltd. Vs. B.C. Thakurdesai and Anr., II (1993) CPJ 225 (NC), it is held that: “If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer, if he is asked to replace the whole machinery without sufficient cause.” (2) Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr., Appeal (Civil) 8701 of 1997, decided on 02.11.1999 (SC). It has been held that:- “The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.” 8. It was argued that just sending the mobile phone for repairs twice cannot mean that the mobile has manufacturing defect. In fact the opposite parties in their written statement have clearly stated that the complainant never filed any complaint before the petitioner No.2 Churu Customer Care Centre, as complainant could not show any complaint number or any receipt of the mobile given to the petitioner no.2. In the bill dated 28.10.2014, it is clearly mentioned that if any manufacturing defect is there the purchaser should contact petitioner No.2/opposite party No.3. The complainant did not contact the petitioner No.2 for the repair of the mobile or for giving information of manufacturing defect. 9. Learned counsel for the petitioners further stated that if there is any defect in the mobile set in the warranty period, the company is duty bound to repair the same. The warranty is limited to repairs of all kinds and change of defective components if any. However, warranty does not extend to complete replacement of the mobile set. 10. On the other hand, learned counsel for the respondent No.1/complainant stated that there were many defects noticed from the very beginning of the purchase of the mobile set like working very slow, network problem, when going ten feet underground signal fails, during call the light of the pone disappears, repeated hanging during use etc. 11. In the State Commission, the mobile set was itself checked and the State Commission in its order has clearly recorded that mobile handset was shown before the Commission, it was not functioning aptly. 12. As the defects were noticed within the warranty period, the opposite parties are liable to replace the handset. In fact the employee of petitioner No.2 clearly stated that the mobile had manufacturing defect and it cannot be repaired. As they did not take the mobile for repairs, there was no question of issuing of any receipt or complaint number. For the first time when the mobile set was given to the dealer i.e. opposite party No.1/respondent No.2 and the respondent No.2 had sent to the petitioner No.2 for being checked and for repairs, there is no question of any complaint number being issued to the complainant. 13. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and learned counsel for respondent No.1 and have examined the record. When a person purchases a new mobile set, he expects efficient working of the handset. Nobody would like to return the mobile set immediately after purchase and get the refund without any problem. There must be some problems with the mobile set, which either were not explained to the complainant by the dealer or they were real problems. As the dealer did not appear before the District Forum or before the State Commission or for that matter even before this Commission, it could not be verified whether the first time when the set was given to the dealer who sent to the Churu Customer Care Centre for repairs, are there any documents available. For the second time also when the handset was presented to Churu Customer Care Centre, and it has been alleged that the Centre did not take the mobile set for repairs rather told the complainant that the same was not repairable as it had manufacturing defect, no papers are available. Even this time no receipt or complaint number has been made available by the complainant. Thus, if the complainant had filed any complaint with the opposite parties for non-functioning of the mobile set, the opposite parties were duty bound to rectify the defect as the mobile was under warranty. As the phone did not work before the State Commission, it definitely requires repairs. Even if there is no manufacturing defect, the fact of the matter is that the phone was not working properly which may be due to any major or minor fault. Clearly the kind of problems faced by the complainant like slow working, occasional hanging of phone, no signal at 10 ft. depth and, network problem and disappearance of light of the mobile during call are common in India and such problems also depend on the network provider. Most of the problems mentioned are relating to signal for which the company providing the network may be responsible. The Mobile is costly and therefore, it must be having more features. It has not been alleged that any of the features provided did not work properly. However, the opposite parties have failed to either clarify reasons for these defects or to rectify these defects and therefore, the complainant could not use his mobile phone to his full satisfaction and to his full enjoyment of a new phone. In these circumstances, the ends of justice would meet if the complainant is compensated for his harassment, mental agony and the problems faced. In my view a compensation of Rs.25,000/- shall be reasonable and proper in the facts and circumstances of the case. 14. Based on the above, discussions, the revision petition No.1810 of 2017 is partly allowed and the order of State Commission is modified to the extent that in place of Rs.57,000/-, figure of Rs.25,000/- shall stand substituted. Mobile shall not be returned to the opposite parties. With these, modifications, the order of the State Commission is upheld. ******** Top**

Warranty benefits denied, as the customer had failed to produce documentary evidence for having informed the Customer Care Centre.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 1810 OF 2017
(Against the Order dated 01/03/2017 in Appeal No. 92/2016 of the State Commission Rajasthan)

SAMSUNG INDIA ELECTRONICS PVT. LTD. & ANR.
B-1, SECTOR 81, PHASE 2, NOIDA,
GAUTAM BUDH NAGAR. UTTAR PRADESH ...........Petitioner(s)
Versus
FAROOQ KHAN & ANR.
BHARTIYA KI DHANI, WARD NO. 13, RATTANGARH
CHURU. RAJASTHAN ...........Respondent(s)

BEFORE:
    HON'BLE MR. PREM NARAIN, PRESIDING MEMBER

Dated : 02 Jul 2019

ORDER

This revision petition has been filed by the petitioner Samsung India Electronics Pvt. Ltd & anr. against the order dated 1.3.2017 of the State Consumer Disputes Redressal Commission, Circuit Bench, Bikaner, Rajasthan, (in short ‘the State Commission’) passed in Appel No.92 of 2016.

2.      Brief facts of the case are that on 28.10.2014, respondent No.1/complainant purchased a mobile handset from respondent No.2/opposite party No.1 for Rs.57,000/- with warranty period of one year. Sometimes in the year 2015, the sensors of the phone developed some defect and it was given to petitioner No.2/opposite party No.3 for repairs through respondent No.2. After repairs, some defect again developed in it and the same was deposited with opposite party No.3 again. Complainant was informed that the phone has some manufacturing defect and cannot be repaired. The mobile was given for repairs/replacement but the opposite parties returned the same handset and refused to replace the same despite the warranty period not having expired.
3.      Aggrieved, the respondent No.1/complainant filed a consumer complaint before the District Consumer Disputes Redressal Forum, Churu, (in short ‘the District Forum’) being complaint No.766 of 2015. The complaint was resisted by opposite party No.1/respondent No.2, who is the dealer from whom the mobile set was purchased. The District Forum vide its order dated 19.05.2016 disallowed the complaint.

4.      Aggrieved with the order of the District Forum, the complainant preferred appeal before the State Commission being Appeal No.92/2016 and the State Commission vide its order dated 1.3.2017 allowed the appeal and directed the opposite parties to pay Rs.57,000/- cost of mobile phone to the complainant along with compensation of Rs.5,000/- and litigation cost of Rs.2500/-.

5.      The opposite parties Nos.2 & 3 namely, Samsung India Electronics Pvt. Ltd. & Churu Customer Care Centre have filed the present revision petition being aggrieved by the order dated 1.3.2017 of the State Commission.

6.      Heard the learned counsel for the petitioners and the learned counsel for the respondent No.1. Respondent No.2 did not appear despite service of notice and none was present on the day of argument.

7.      Learned counsel for the petitioners stated that the State Commission has not given any reason for setting aside the order of the District Forum dismissing the complaint. The State Commission has only stated that the mobile was sent for repairs twice during the warranty period and therefore, the mobile has manufacturing defect. This is a very cryptic order and cannot be sustained. In respect of his argument learned counsel referred to following judgments:
(1)    Vinot Sharma Vs. Hindustan Motors Ltd. & anr, decided on 3.4.2002, (NC). It has been held that:

“5.   It was also argued that in Mahindra & Mahindra Ltd. Vs. B.C. Thakurdesai and Anr., II (1993) CPJ 225 (NC), it is held that:

“If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer, if he is asked to replace the whole machinery without sufficient cause.”

(2)   Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & Anr., Appeal (Civil) 8701 of 1997, decided on 02.11.1999 (SC). It has been held that:-
“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”

8.      It was argued that just sending the mobile phone for repairs twice cannot mean that the mobile has manufacturing defect. In fact the opposite parties in their written statement have clearly stated that the complainant never filed any complaint before the petitioner No.2 Churu Customer Care Centre, as complainant could not show any complaint number or any receipt of the mobile given to the petitioner no.2. In the bill dated 28.10.2014, it is clearly mentioned that if any manufacturing defect is there the purchaser should contact petitioner No.2/opposite party No.3. The complainant did not contact the petitioner No.2 for the repair of the mobile or for giving information of manufacturing defect.

9.      Learned counsel for the petitioners further stated that if there is any defect in the mobile set in the warranty period, the company is duty bound to repair the same. The warranty is limited to repairs of all kinds and change of defective components if any. However, warranty does not extend to complete replacement of the mobile set.

10.    On the other hand, learned counsel for the respondent No.1/complainant stated that there were many defects noticed from the very beginning of the purchase of the mobile set like working very slow, network problem, when going ten feet underground signal fails, during call the light of the pone disappears, repeated hanging during use etc.

11.    In the State Commission, the mobile set was itself checked and the State Commission in its order has clearly recorded that mobile handset was shown before the Commission, it was not functioning aptly.

12.    As the defects were noticed within the warranty period, the opposite parties are liable to replace the handset. In fact the employee of petitioner No.2 clearly stated that the mobile had manufacturing defect and it cannot be repaired. As they did not take the mobile for repairs, there was no question of issuing of any receipt or complaint number. For the first time when the mobile set was given to the dealer i.e. opposite party No.1/respondent No.2 and the respondent No.2 had sent to the petitioner No.2 for being checked and for repairs, there is no question of any complaint number being issued to the complainant.

13.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioners and learned counsel for respondent No.1 and have examined the record. When a person purchases a new mobile set, he expects efficient working of the handset. Nobody would like to return the mobile set immediately after purchase and get the refund without any problem. There must be some problems with the mobile set, which either were not explained to the complainant by the dealer or they were real problems. As the dealer did not appear before the District Forum or before the State Commission or for that matter even before this Commission, it could not be verified whether the first time when the set was given to the dealer who sent to the Churu Customer Care Centre for repairs, are there any documents available. For the second time also when the handset was presented to Churu Customer Care Centre, and it has been alleged that the Centre did not take the mobile set for repairs rather told the complainant that the same was not repairable as it had manufacturing defect, no papers are available. Even this time no receipt or complaint number has been made available by the complainant. Thus, if the complainant had filed any complaint with the opposite parties for non-functioning of the mobile set, the opposite parties were duty bound to rectify the defect as the mobile was under warranty. As the phone did not work before the State Commission, it definitely requires repairs. Even if there is no manufacturing defect, the fact of the matter is that the phone was not working properly which may be due to any major or minor fault. Clearly the kind of problems faced by the complainant like slow working, occasional hanging of phone, no signal at 10 ft. depth and, network problem and disappearance of light of the mobile during call are common in India and such problems also depend on the network provider. Most of the problems mentioned are relating to signal for which the company providing the network may be responsible. The Mobile is costly and therefore, it must be having more features. It has not been alleged that any of the features provided did not work properly. However, the opposite parties have failed to either clarify reasons for these defects or to rectify these defects and therefore, the complainant could not use his mobile phone to his full satisfaction and to his full enjoyment of a new phone. In these circumstances, the ends of justice would meet if the complainant is compensated for his harassment, mental agony and the problems faced. In my view a compensation of Rs.25,000/- shall be reasonable and proper in the facts and circumstances of the case.

14.    Based on the above, discussions, the revision petition No.1810 of 2017 is partly allowed and the order of State Commission is modified to the extent that in place of Rs.57,000/-, figure of Rs.25,000/- shall stand substituted. Mobile shall not be returned to the opposite parties. With these, modifications, the order of the State Commission is upheld.

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