State Consumer Disputes Redressal Commission
Sachin Singh vs Samsung India Electronics Pvt. Ltd. on 28 September, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.104 of 2021
Date of Institution : 22.03.2021
Date of Reserve : 14.09.2022
Date of Decision : 28.09.2022
Sachin Singh aged about 26 years S/o Sh.Nanku Singh, resident of
House No.15/16, Old Grain Market, Sangrur.
....Appellant/Complainant
Versus
1. Samsung India Electronics Pvt. Ltd., 20th to 24th Floor, Two
Horizon Center, Golf Course Road, Sector 43, DLF, PH-V,
Gurugram (Haryana) through its Managing Director.
2. M/s Gaurav Communications, 1st Floor, Inside Gaushala
Road, Near Railway Chowk, Sangrur through its Proprietor.
3. Singla Mobile Care, Near Baba Pir, Sangrur Road,
Bhawanigarh, Tehsil Bhawanigarh, District Sangrur through
its proprietor.
........Respondents/Opposite parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 01.02.2021 of the District
Consumer Disputes Redressal Commission,
Sangrur.
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Present:-
For the appellant : Sh.Sanjeev Goyal, Advocate For respondent No.1 : Sh.Devinder Kumar, Advocate For respondents No.2&3 : Ex-parte First Appeal No 104 of 2021 2 HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellant/Complainant-Sachin Singh against the order dated 01.02.2021 passed by the District Consumer Disputes Redressal Commission, Sangrur whereby the complaint filed by the appellant/complainant-Sachin Singh was allowed and opposite parties were directed to replace the glass/screen of the mobile set, in question, and to make the mobile set in working condition.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. In nutshell, the complaint of the complainant before the District Commission is that he purchased a mobile handset on 07.11.2018 from opposite party No.3 who assured him that the mobile i.e. Galaxy Note 9 (128 GB) is with special feature of gorilla glass, which is a scratch free and unbreakable even if it hits with hard surface or even if it hits with the hammer. The complainant was also showed some recordings of the said mobile phones.
Accordingly, the he purchased mobile i.e. Samsung Galaxy Note 9 (128 GB) from opposite party No.3 against invoice No.2762, dated 07.11.2018 for a sum of Rs.61,900/-. On 09.12.2018, while complainant was sitting in the office and when he tried to pick up a call then the mobile accidentally fell from his hand and when he picked up the phone, in question, he was shocked to see that the screen of the mobile set was broken and the mobile set became non-functional. Thereafter, the complainant approached opposite First Appeal No 104 of 2021 3 party No.3 with the request of replacement of the mobile set because at the time of selling the mobile set the opposite party has specifically told about the features of gorilla glass and on the assurance of the opposite party No.3 complainant purchased the mobile phone. However, complainant was advised to approach opposite party No.2 and on the next date, he approached opposite party No.2 and showed the mobile set and requested for its replacement but opposite party No.2 refused to replace the same by saying that broken display is not covered even in the terms and conditions of the policy and refused to entertain the request of the complainant. The complainant also get the photocopy of the Job Sheet dated 10.12.2018 and made the endorsement of misrepresentation. A handsome amount was spent by the complainant on the purchase of the mobile set but the same was broken within one month from its purchase. It is asserted that the mobile set has not been replaced even though the same is within the warranty period, which caused harassment and inconvenience to the complainant and prayed for the following reliefs:
i) to refund the purchase price of mobile set i.e. Rs.61,900/- along with interest @18% per annum from the date of purchase till realization;
ii) to pay Rs.50,000/- on account of mental agony and physical harassment;First Appeal No 104 of 2021 4
iii) to pay Rs.3,00,000/- for committing unfair trade practice, to be deposited with Free Legal Aid Services;
and
iv) to pay Rs.22,000/- as litigation expenses.
4. Upon notice, opposite party No.1 appeared and filed its written reply, whereas opposite parties No.2 & 3 did not appear despite service, and were proceeded against ex-parte, vide order dated 11.03.2019 by the District Commission.
5. Opposite party No.1 filed its written reply and took the preliminary objections that the complaint is bad for mis-joinder of the parties and no cause of action arose to the complainant to file the present complaint. The handset was not within the warranty period as it was damaged due to physical handling and display screen was broken due to falling on the ground. It is further alleged that there is no deficiency in service or unfair trade practice on the part of the opposite parties. Further alleged that the warranty conditions in case of physical damage are not covered and repair, if done, is chargeable. The complainant has filed the present complaint with the false facts and concealed the true facts. On merits, even the purchase of mobile set against Bill No.2762 dated 07.11.2018 for Rs.61,900/- was denied. It is denied that any misrepresentation was done at the time of selling of the mobile set. It was submitted that there is no deficiency in service on the part of the opposite parties and prayed for dismissal of the complaint with costs.
First Appeal No 104 of 2021 5
6. The parties led their evidence in support of their respective contentions before the District Commission and after hearing the learned counsel for the parties, the complaint was allowed, vide impugned order dated 01.02.2021 and following order was passed:
".....we allow the complaint and direct the Ops to replace the glass/screen of the mobile set, in question, and to make the mobile set in working condition..."
7. Aggrieved by the relief granted by the District Commission, the appellant has approached this Commission with the prayer that the order passed by the District Commission be modified and reliefs as prayed before the District Commission be granted.
8. Notice of the appeal was issued to the respondents through Registered Post. Respondent No.1 appeared through his counsel, whereas respondents No.2 & 3 did not appear despite service, therefore, the respondents No.2 & 3 were proceeded ex-parte, vide order dated 27.07.2021.
9. I have heard the contentions of the appellant and respondent No.1 and have given my thoughtful consideration to the same.
10. Written arguments have been submitted by the appellant on the grounds as taken in the appeal. Orally, learned counsel for the appellant at the very outset vehemently contended that the appellant/complainant purchased one mobile i.e. Samsung Galaxy Note 9 (128 GB) from respondent/opposite party No.3 on the false representation and assurance that the mobile set is with special feature of gorilla screen which is unbreakable and unscratchable First Appeal No 104 of 2021 6 and cannot broken even with the hammer but despite that the screen broke within a month of the purchase of the mobile set. The mobile set hit to the ground by slipping from the hand of the complainant while picking up. Meaning thereby, the assurances / representations given by respondent/opposite party No.3 at the time of sale of the mobile set, in question, is totally misconceived and false with the intention to misguide the appellant/complainant for buying the costlier handset, which is an unfair trade practice and amounts to misleading advertisements by the respondents/opposite parties. He further asserted that the appellant/complainant is very much entitled for the replacement of the mobile set by the respondents/opposite parties free of cost as it does not fulfilled the assurances given by the respondents/opposite parties and lot of mental harassment and agony has been given to the appellant/complainant and he should be properly compensated which has not been done by the District Commission while passing the impugned award.
11. Per contra, learned counsel for respondent/opposite party No.1 submitted its written arguments on the lines as mentioned in its written reply. Orally, learned counsel for the respondent/ opposite party No.1 submitted that there is no written warranty of any type regarding the protection of gorilla glass being unbreakable even with the hammer. He also referred to the bill Ex.C-3, vide which the alleged handset was purchased by the appellant/complainant and alleged that there is no such warranty or First Appeal No 104 of 2021 7 guarantee indicated in this bill that the gorilla glass is having such unbreakable feature so the case of the complainant, on this score, is not maintainable. He further asserted that the performance of mobile phones totally depends upon their own physical handling and if there is mishandling of the phone then of course warrantee/ guarantee is not applicable. In the present case, it has been admitted by the complainant that the screen was broken when the mobile set falls on the ground, meaning thereby, it was damaged due to physical handling and that type of damage is not covered in the warranty conditions.
12. The main contention of the appellant/complainant in the present case is that he purchased the mobile set Samsung Galaxy Note 9 (128 GB) on the assurance that it is fixed with gorilla glass which is unbreakable even if it is hit on the hard surface or even if it hit with the hammer and such type of misleading advertisements is covered under the Consumer Protection Act and the appellant/complainant is entitled for the proper compensation. This type of unfair trade practice by giving false and misleading advertisements and unfair trade practice is covered under Section 6(28) and Section 47 of the Consumer Protection Act. Sections 6(28) and 47 is reproduced as under:
"6(28) "misleading advertisement" in relation to any product or service, means an advertisement, which-- (i) falsely describes such product or service; or (ii) gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or (iii) conveys an express or implied representation First Appeal No 104 of 2021 8 which, if made by the manufacturer or seller or service provider thereof, would constitute an unfair trade practice; or
(iv) deliberately conceals important information; (47) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:--
(i) making any statement, whether orally or in writing or by visible representation including by means of electronic record, which--
(a) falsely represents that the goods are of a particular standard, quality, quantity, grade, composition, style or model;
(b) falsely represents that the services are of a particular standard, quality or grade;
(c) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(d) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(e) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(f) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;
(g) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof: Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence;First Appeal No 104 of 2021 9
(h) makes to the public a representation in a form that purports to be--
(A) a warranty or guarantee of a product or of any goods or services; or (B) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(i) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;
(j) gives false or misleading facts disparaging the goods, services or trade of another person."
13. After going through all these provisions of the Consumer Protection Act, it has to be seen, if any such assurances and false misrepresentations were given by the respondents/opposite parties while selling the impugned handset to the appellant/complainant. For that purpose, first document which is to be seen is the invoice/bill, dated 07.11.2018, Ex.C-3 which was issued to the appellant/complainant at the time of selling the handset. The careful perusal of the bill reveals that there is not even a single line First Appeal No 104 of 2021 10 in the same that handset with gorilla glass is unbreakable. As per the google search that 'gorilla glass is a brand of specialized toughened glass developed and manufactured by Corning. It is thin, light and damage resistant. Gorilla glass is used as cover glass for portable electronic devices, including mobile phones. However, it is nowhere mentioned that it is not even unbreakable with the hit of hammer or fall on the ground or hit with the hard surface. Meaning thereby, although when the glass is toughened glass but as alleged by the appellant/complainant that assurances were given by the respondents/opposite parties that it is unbreakable and scratch free even if it is hit by hard surface or even with the hammer then of course the appellant/complainant was duty bound to prove this fact that any such assurances were given by the respondents/opposite parties at the time of selling of the said mobile set, to which the appellant/complainant is trying to prove his case by producing the CD as Ex.C-5, Ex.C-6 and Ex.C-7 is chat of product expert of respondent/opposite party No.1 and that has been reproduced by him in the appeal as following:
"Q. Samsung Glaxy Note 9 has the Gorilla Glass? Ans. Yes, Samsung Glaxy Note 9 has the Gorilla Glass protection.
Q. As I have some videos on You-tube, So the
screen protected in all the way?
Ans. It has strong Gorilla Glass, which will help you
keep the screen safe.
First Appeal No 104 of 2021 11
Q. Samsung Glaxy Note -9 has the Gorilla Glass?
Ans. Yes Sir, Note-9 has an Excellent Gorilla Glass in
it."
14. From the above said chat or conversation of the appellant/complainant with the respondents/opposite parties, it is nowhere mentioned that the gorilla glass screen is unbreakable even if it hit by the hammer or hit with the hard surface. No doubt, there is mention about gorilla glass in this chat but there is not an iota of evidence to show that if the assurances as pleaded by the appellant/complainant in his complaint as well as in his appeal were made by the respondents/opposite parties at the time of selling of the said mobile set, although the appellant/complainant is alleging that the mobile set was within the warranty period but he has not produced any warranty card on the file to prove his case.
15. Moreover, as per the terms and conditions of Samsung Mobile uploaded on their website, it was clearly mentioned that 'What is Not covered by your warranty', to which, it is mentioned as Point No.6 -Scratches & damage to the outer surface areas and externally exposed parts that are due to normal customer use."
The appellant/complainant has not produced any cogent and convincing evidence regarding the alleged misrepresentation made by the respondents/opposite parties or unfair trade practice adopted by the respondents/opposite parties while selling the mobile phone.
First Appeal No 104 of 2021 12
16. In view of the above, I do not find any merit in the present appeal and the same is hereby dismissed. The order of the District Commission is upheld.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL)
PRESIDING JUDICIAL MEMBER
September , 2022
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