State Consumer Disputes Redressal Commission
Samsung India Electrnics Pvt Ltd., vs 1.Mr. Srishant Challa on 21 November, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
FA. No. 392/2018 AGAINST ORDERS IN
CC. No. 371/2013 ON THE FILE OF DISTRICT
CONSUMER FORUM-II, HYDERABAD.
Between :
Samsung India Electronics Pvt.Ltd.,
Having its registered office at
A-25, Ground Floor,
Front Tower,
Mohan Co-operative Industrial Estate,
New Delhi-110 044. ... Appellant/
Opposite party no.2
And
1.Mr.Srishant Challa, S/o.Shri C.Rajender Prasad, R/o.Plot No.342, Road No.2, Banjara Hills, Hyderabad - 500 034.
2. Mr.Karan Talwar, S/o.Late Mr.P.K.Talwar, R/o.F-1, Trendset Ville, 8-2-309/12, Road No.3, Banjara Hills, Hyderabad-500 034. ...Respondents/ Complainants
3. Faizul's Communication, Proprietor, Mr.Mohd Faizul Bakalli, Shop No.8-2-634/1/11, Byline Complex, Opposite Pizza Hut, Road No.12, Banjara Hills, Hyderabad-500 034. ... Respondent.
Opposite party no.1 Counsel for the Appellant : M/s.Bhaskar Poluri Counsel for the Respondents : M/s.Karan Talwar -R1 & R2.
R3- Notice served.
QUORUM: Hon'ble Sri V.V.Seshubabu, M ember (M -J), & Hon'ble Smt.R.S.Rajeshree, M ember (N-J) TUESDAY, THE TWENTY FIRST DAY OF NOVEM BER, TW O THOUSAND TWENTY THREE.
Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember (N-J) ****
01). This is an appeal filed u/s. 15 of Consumer Protection Act, 1986 by the appellant/opposite party no.2 being aggrieved by the 2 orders passed by District Commission, Hyderabad-II passed in C.C.No.371 of 2013 vide orders dated 10.02.2015 wherein the District Commission has passed the following orders:
" In the result, the complaint of the complainants is partly allowed directing the opposite parties No.1 & 2 jointly and severally
1. To refund to the complainant a sum of Rs.41,500/- along with interest @ 9% P.A. from the date of payment i.e. 04-05-2013 till the date of realization by taking back the defective mobile from the complainant
2. To pay a sum of Rs.5,000/- towards compensation for mental agony and trauma.
3. To pay a sum of Rs.2,000/- towards costs.
Time for compliance:30 days from the date of receipt of this order.
02). For the sake of convenience the parties are described as complainant and opposite parties as arrayed in the complaint.
03). The case of the complainant is that complainant number 2 had purchased a Samsung Galaxy S4 mobile phone from opposite party no. 1 on 4.5.2013 vide invoice number 1226 by paying an amount of Rs.41,500/- for the use of his client cum friend i.e. complainant no.1 and had handed over the said phone to complainant no.1 in a packaged and sealed condition on 5 th May 2013; that as it takes time to shift from one phone to another the complainant no.1 started using the phone only on 7 th May, 2013 by charging the battery up to 100% but to his utter surprise the battery got drained within a span of five hours as such the complainant no.1 once again charged the battery but the battery got discharged within another 6 hours and it was noticed that the phone was getting overheated and it was further noticed that the display of the screen was not working properly and only 1/3rd portion of the screen was visible, the rest two third of the screen remained blank and an internal hairline crack was noticed which could not be felt on the external screen; as such the complainant took the phone to the Service Centre, Basheer Bagh, Hyderabad but the service centre at Basheer Bagh refused to rectify the phone under the warranty stating that the physical damage is not covered under warranty, as such the complainant raised an online complaint with opposite party no.2 customer service and one of the representative of opposite party no.2 offered to give 70% 3 discount on the repair of display and completely refused to replace the phone or to refund the money, hence the complaint was filed.
04). On the other hand, the opposite party no.2 while admitting the purchase of the phone had opposed the complaint on the ground that the products which come to market for sale passes through strict and stringent quality tests and after thorough examination, the said product is put for sale and the customers are shown the display pieces and after being fully satisfied, a sealed product is opened in the presence of the customer for the purpose of demonstration, after the purchaser is satisfied a bill is generated and in the instant case also the complainant after being fully satisfied had purchased the phone; that when the complainant brought the phone for repair, it had a physical damage which might have occurred due to the dropping of the device or due to heavy pressure exerted upon it; and as per the terms of warranty, the physical damage is not covered under the warranty and that there is no manufacturing defect but the damage has occurred due to mishandling of the instrument hence the question of deficiency of service does not arise.
05). Before the District Commission Evidence affidavit of complainants filed . Exs.A1 to A11 were marked on behalf of the complainants. Mr.M.Satyanand, authorised signatory of opposite party no.2 filed evidence affidavit . Exs.B1 & B2 were marked on behalf of opposite party no.2. Complainant and opposite party no.2 filed written arguments.
The District Commission partly allowed the complaint as stated supra in para no.1.
06). Being aggrieved by the orders passed by the District Commission as stated in para no.1 the present appeal is preferred by the opposite party no.2/manufacturer on the following grounds:
That the District Forum erred in not considering that the authorised engineer examined before the District Forum had categorically deposed that there was manufacturing defect in the mobile set;
The District Forum failed to observe that the authorised engineer had stated that there is hairline 4 crack but never opined that the same had nexus to the alleged over heating of the phone;
The District Forum without there being any investigation had come to a conclusion that the glass used in the mobile phone must have been of inferior quality, as such the same could not withstand the charging of the mobile;
The District Forum misconstrued the gesture of the appellant wherein it had offered to bear 70% of repair charges and had concluded it to be as a admission of manufacturing defect, whereas as goodwill gesture, this appellant had offered to bear the 70% repair charges;
The District Forum failed to consider that it is settled preposition of law that where a product is capable of being repaired, the same does not warrant replacement or refund;
Further the appellant relied on:
Tata Engineering and Locomotive Co. Ltd. & Anr. Vs. M.Moosa reported in (1994)2 CPJ 1046 (CP) NCDRC;
S.K.Aggarwal Vs. Godrej Ge Appliances reported in II (1997) CPJ 341 ; and Tapan Kumar Chakraborty vs. Expo Machinery Limited reported in II (1994) CPJ 517 The appellant/opposite party no.2 prayed that the appeal be allowed by setting aside the order of the District Commission.
07). Heard both sides and perused the record, so also the order of the District Commission.
08). Now the points that arise for consideration are:
i. Whether the impugned order as passed by the District Commission suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with in any manner?
ii. To what relief ? 09). The specific case of the complainants is that a defective
phone was sold by the opposite parties. Though the complainant 5 had pleaded overheating of the phone, depletion of battery too early, partial display of the screen and internal hairline crack, but based his whole argument on the hair line crack. The opposite party had resisted stating that the problem in the phone was due to the physical damage which might have caused due to either dropping of the phone or due to applying of heavy pressure on phone which has resulted in the hairline crack which amounts to physical damage and that the physical damage is not covered under warranty.
10). Now the only point that needs to be considered is:
i. Whether the hairline crack is due to manufacturing defect or has been caused due to physical damage?
11). The respondents/complainants counsel had vehemently argued that, had the hairline crack occurred due to dropping of the phone on ground or due to excess pressure exerted, then there would surely be certain crack or scratch visible on the external part of the device and since nothing is visible externally, the internal hairline crack is a manufacturing defect. On the other hand the opposite party relied on Ex.B2 and stated that it is an external crack, the District Commission who has examined the device could not notice the external crack, hence concluded that it was an internal crack and hence came to a conclusion that it was defective. In view of such conclusion it becomes necessary to ascertain the cause of such crack since the respondent/complainant is pleading that the hairline crack might have occurred due to manufacturing defect in the phone. In such case it is for the complainant to prove the same. For this we would like to explain it with an example of probabilities: Generally the products having delicate internal components are built with a hard outer covering to safeguard the delicate parts, such as for example the thermos flask which has a special kind of glass internally and hard covering outside but when the said flask is dropped down there may not be any damage or scratch visible on the outer surface but the glass inside the flask will break into pieces. This being the factual aspect we would now consider the legal aspect.6
12). Whenever a defect in goods is pleaded, the person who pleads has to prove the same.
The procedure to be followed when defect in goods is pleaded is laid down under sec 13(1)(c) of CP Act 2019 which is as follows:
" Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it an authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty five days of the receipt of the reference or within such extended period as may be granted by the District Forum."
In the instant case the appellant/opposite party had examined their authorised engineer who, after examining the device in open court had concluded that there is no manufacturing defect and the damage is caused due to physical damage and the District Commission considering that since the engineer is opposite parties' person who would definitely support the contention of opposite parties, as such did not give weightage to his statement and allowed the complaint. But we fail to understand why the respondent/complainant who is pleading defect has not put any efforts to deposit the device in the Commission and get it tested from some third party engineer in order to prove the defect. Under Ex.A9 legal notice through mail, dated 23.05.2013 the respondent/complainant had expressed his readiness to handover the device for testing by any third party engineer, having said that we fail to understand why the same effort has not been put by the respondent/complainant after filing the case; merely because the appellant/opposite party had agreed to bear the 70% of repair charges that itself will not prove the manufacturing defect. It is for the respondents/complainants to prove the manufacturing defect.
13). Further it is to be observed that the phone was purchased on 04.05.2013 and it is the case of the respondent/complainant that the unboxing was done only on 07.05.2013 by one of his friend i.e. complainant no.1, except a bald statement there is no 7 evidence to prove that the unboxing was done on 07.05.2013.
Hence an adverse inference can be drawn against this statement. Moreover, it is not the case of the respondent/complainant that he got the phone repaired from some other service centre and had incurred certain expenditure. No prudent person would retain the device for 10 long years in not working condition nor depositing before the Commission. As said supra though the respondent/complainant had alleged over-heating of the phone, improper display of the screen and draining of the battery, but the respondent/complainant did not choose to get hairline crack rectified nor had proved any of the defects as pleaded such as battery was depleting too early or that the phone was being overheated while charging. Hence, we feel that the respondent/complainant has failed to prove that there was any manufacturing defect in the device.
Therefore we feel that the District Commission erred in not following the procedure laid down under sec 13(1)(c) of CP Act 1986 and merely based on the assumptions and presumptions had come to a conclusion that the phone was defective, the District Commission is not an technical expert to ascertain the manufacturing defect. Only an expert/engineer would be the proper person to ascertain the manufacturing defect.
Based on the foregoing discussion, we are of the view that the respondents/complainants have failed to prove any manufacturing defect with the substantial proof and the District Commission erred in coming to a conclusion of manufacturing defect in the absence of an expert opinion and hence the order of the District Commission needs to be set aside.
14). In the result, the appeal is allowed by setting aside the order of the District Commission-II,Hyderabad passed in C.C.No.371/2013 dt.10.2.2015 and eventually the complaint stands dismissed.
The appellant is at liberty to withdraw the statutory amount that has been deposited while preferring this appeal , after the lapse of the appeal time.
Sd/- Sd/-
M EMBER(J) M EMBER(NJ)
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Dated: 21.11.2023.