State Consumer Disputes Redressal Commission
Tapas Pal vs Samsung India Electronics Pvt. Ltd. on 11 September, 2015
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/669/2013 (Arisen out of Order Dated 30/05/2013 in Case No. Complaint Case No. CC/129/2012 of District Burdwan) 1. Tapas Pal S/o R.N. Pal, Badamtala, North of Aurobinda Stadium, Burdwan - 713 101. ...........Appellant(s) Versus 1. Samsung India Electronics Pvt. Ltd. 2nd Floor, Lee Road, Lala Lajpat Roy Sarani, Kolkata - 700 020. 2. The Proprietor, "New Telelink" Pirpukur, Kalna Road, Burdwan - 713 101. 3. S. P. Infotech G.T. Road, Officers' Colony, P.O. Sripally, Burdwan - 713 103. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Appellant: In-Person, Advocate For the Respondent: Mr. Prasanta Banerjee, Advocate ORDER 11.09.2015 MR. TARAPADA GANGOPADHYAY, HON'BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the Complainant challenging the judgment and order dated 30.5.2013 passed by the Ld. District Forum, Burdwan in D.F.Case No. 129/2012, dismissing the Petition of Complaint observing that the Petition of Complaint is not maintainable before the Consumer Forum.
Facts of the case, as emanating from the materials on records, are, in short, that the Appellant/Complainant purchased a Mobile Telephone of Samsung-make bearing Model: CDMA, MUZIK -219, A0000024DF8078 from the Respondent No. 2/OP No. 2-shop on payment of Rs. 2,750/- by cash against Receipt No. 1564 dt. 24.11.2011 with a warranty period of one year. After such purchase, the Appellant/Complainant found on 24.4.2012, i.e. within the warranty period, that the said Mobile set was not working. Noticing such non-functioning of the said mobile set the Appellant/Complainant immediately rushed to the Respondent No. 2/OP No. 2-Dealer, which, in its turn, sent the Appellant/Complainant to the Respondent No. 3/OP No. 3, being the authorized service centre of the manufacturing company, i.e. the Respondent No. 1/OP No. 1, and the Respondent No. 3/OP No. 3-Service Provider examined the Mobile Set in question and charged Rs. 85/- from the Appellant/Complainant under Receipt No. 1193 dt. 25.4.2012 for examination of the same, and returned the set in question, without repairing, to the Appellant/Complainant, conveying the Appellant/Complainant that water 'penetrated' in the mobile set and the charges were taken for detection of 'water logging' and hence, the case was not covered by the terms of the warranty concerned. Thus, the Appellant/Complainant, having got no redressal from the concerned companies, moved the Petition of Complaint in question before the Ld. District Forum which dismissed the Complaint in the manner as mentioned at the outset. Dissatisfied with such order the Complainant has approached this Commission by filing the instant Appeal.
The Appellant/Complainant, who appears in person, submits that the Ld. District Forum erred in dismissing the Complaint on the ground of non-maintainability of the same before the Consumer Fora relying on the decision of the Hon'ble Supreme Court in General Manager, Telecom Vs. M.Krishnan & Anr., reported in 2009 CTJ 1062 (SC)(CP), but the facts of which were different from the facts of the case on hand, and thus without correctly appreciating the inapplicability of the said decision of the Hon'ble Supreme Court in the case on hand.
The Appellant/Complainant continues that the Respondents/OPs are mere licensees and cannot be deemed to be Telegraph Authorities as per the provision of the Telegraph Act and hence, Section 7B of the Telegraph Act, 1885, which has been referred to in the said decision of the Hon'ble Supreme Court, has no application to the facts of the case on hand.
The Appellant/Complainant further submits that the Respondent No. 3/OP No. 3-Service Centre could not produce any cogent evidence in support of 'water logging' as taken as a plea by the Respondent No. 3/OP No. 3 for covering up the deficiency in service.
The Appellant/Complainant further submits that the Mobile Set in question being non-functional within the warranty period, and despite existence of provision for repairing or replacement of parts at Clause No. 8 of the Warranty Card concerned, the Respondents/OPs, particularly the Respondent Nos. 1 & 3/OP Nos. 1 & 3, did not render due service to the Appellant/Complaint as per the obligation arising out of the 'Warranty Card' concerned and hence, there is deficiency in service on the part of the Respondent Nos. 1 & 3/OP Nos. 1 & 3.
The Appellant/Complaint concludes that in view of the submission so put forward the instant Appeal should be allowed and the impugned judgment and order be set aside, the same being the result of improper application of the referred decision of the Hon'ble Supreme Court.
On the other hand, the Ld. Advocate for the Respondent No. 1/OP No. 1 submits that the Mobile Set in question was used by the Appellant/Complainant without any problem for about six months, indicating thereby that the defect, if any, in the said Mobile Set was not a manufacturing defect.
The Ld. Advocate further submits that the defect in the Mobile Set, owing to water logging as the authorized service provider of the Respondent No. 1/OP No. 1-Manufacturer, detected, as appearing from their Written Argument submitted before the Ld. District Forum, is not covered by the terms and conditions of the warranty concerned, and hence, there is no deficiency in service on the part of the Respondent No. 1/OP No. 1-Manufacturer.
The Ld. Advocate also submits that the repairing, as covered by the warranty, is not prayed for by the Appellant/Complainant, but prayed for compensation instead, which is not covered by the said warranty.
The Ld. Advocate finally submits that in view of the aforesaid submission the impugned judgment and order should be sustained.
None appeared on behalf of the Respondent No. 2/OP No. 2 and the Respondent No. 3/OP No. 3 despite due service of Notice upon them as evident from the orders dated 12.3.2014 and 30.10.2014 respectively of this Commission.
We have heard the parties appearing, considered their submission and perused the materials on records.
Before adverting to the other issues involved in the present case, it appears to us to be proper to dwell upon the issue of jurisdiction of the Consumer Fora in respect of the matter on hand.
As to the jurisdiction of the Consumer Fora in respect of the present case, it is observed that firstly, the present controversy is not related to telecommunication service but related to purchase of a Mobile Set, that too not from any Telegraph Authorities but from a private concern which is not a Telegraph Authority, and secondly, since 2001, being the year to which the case of General Manager, Telecom Vs. M.Krishnan & Anr. is related, the telecom sector has undergone a legislative clarification. Telecommunication service is no longer run directly by any Government Department, but run by the licensed private or public sector companies. Section 7-B of the Telegraph Act, 1885 dealing only with the Telegraph Authorities, which has been referred to in the said decision of the Hon'ble Supreme Court, has no application whatsoever for a simple reason that neither of the Respondents/OPs can be deemed to be a Telegraph Authority as per the provisions of the Telegraph Act, 1885 which applies only if the dispute is between a Telegraph Authority and a Consumer, as is not the fact of the case on hand.
In this respect, the Clarification, issued by the Ministry of Communication & IT, Department of Telecommunication, Government of India, vide letter No. 2-17/2013-Policy-I dated 24.1.2014 as communicated by letter dated 7.3.2014 of the Ministry of Consumer Affiars, Food & Public Distributiion, Department of Consumer Affairs (Consumer Protection Unit), further unambivalently and authentically confirms that private and public service providers of the telephone services, as are the Respondents/OPs in the present case, are not the Telegraph Authorities and hence, "the District Fora are competent to deal with the disputes between individual telecom consumer and the telecom service provider". The said Notification runs thus:
"However, powers of the telegraph authority have neither been vested nor are available to private telecom service providers and BSNL. Therefore, recourse to section 7B in case of disputes between consumers and private service providers and BSNL would not be available."
Therefore, the fact of being Licensee/Service Provider, as in the present case, but not being a Telegraph Authority with which the referred decision of the Hon'ble Supreme Court is concerned, sufficiently distinguishes the present case from the facts of the said decision of the Hon'ble Supreme Court and hence, we hold that the decisions of the Hon'ble Supreme Court and the Hon'ble National Commission, as has been relied upon by the Ld. District Forum in the order impugned, are not applicable to the case on hand and that in the present case the Consumer Forum has jurisdiction to adjudicate.
In view of the aforesaid facts and circumstances of the case, it is held that the Consumer Complaint in question is maintainable before the Ld. District Forum.
Coming to the issue of deficiency in service on behalf of the Respondent Nos. 1 & 3/OP Nos. 1 & 3, it is indicated that the Respondent Nos. 1 & 3/OP Nos. 1& 3 did not discharge their obligation as laid down under the warranty to the effect of repairing or replacing the Mobile Set or to entertain any claim or compensation as stipulated at Clause No. 8 of the said warranty. Hence, the deficiency in service on the part of the Respondent Nos. 1 & 3/OP Nos. 1 & 3 is established.
Therefore, the Appeal is allowed and the impugned judgment is set aside. The Respondent Nos. 1 & 3/OP Nos. 1&3 are jointly and severally directed to pay to the Complainant Rs. 1,500/- as compensation, which appears to be just and proper in view of the Appellant/Complainant having used the Mobile Set for some period, and Rs. 1,000/- as litigation cost. The Respondent Nos. 1 & 3 are directed to pay the said amount to the Appellant/Complainant within 45 days from the date of this order, failing which interest @ 9% per annum shall accrue on the said amount for the period of default. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER