BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, THIRUVANANTHAPURAM, KERALA

Case No. CC/308/2021

Between

Peter Carmel

________________________________Complainant

And

M/S Samsung India Electronics Pvt. Ltd & Another

____________________________Opposite Parties

Name and Address of the Complainant

Peter Carmel, aged about 70 years, residing at Lovedale,

Valiyakunnu, Kizhuvilam, Attingal, Trivandrum- 695104

Name and Address of the Opposite Parties

1. M/S Samsung India Electronics Pvt. Ltd., having its registered

office at 8th Floor, DLF Centre, Sansad Marg, New Delhi- 110001,

Represented by its Authorised Signatory

2. M/S Mastrofore, Authorised Samsung Service Centre, TC 3/2238,

1st Floor, Sophiya Building, Thiruvananthapuram- 695004,

Represented by its Manager

--1--
 WRITTEN STATEMENT ON BEHALF OF OPPOSITE PARTY (OP)

NO. 1– M/S SAMSUNG INDIA ELECTRONICS PVT. LTD. IN

RESPONSE TO THE CONSUMER COMPLAINT FILED BY THE

COMPLAINANT

The Opposite Party (OP) No 1 above named most respectfully states:

1. That the complainant had impleaded Opposite Party no. 1 – M/S

Samsung India Electronics Pvt. Ltd. to the instant complaint filed before

the Hon’ble District Forum, Thiruvananthapuram, Kerala. The

complainant has filed the instant compliant without verifying the facts

and exercising reasonable due diligence and therefore have wrongly

impleaded OP no. 1 as party to the complaint.

2. It is submitted that OP no. 1 is a well reputed company and is having a

very large customer base and among others, manufactures, manages the

electronic appliances, mobile hand set business and having its office at

Samsung India Electronics Pvt. Ltd., 8 th Floor, DLF Centre, Sansad Marg,

New Delhi- 110001.

3. That the present reply on behalf of Samsung India Electronics Pvt. Ltd. –

Opposite Party (OP) no. 1 (hereinafter referred to as Answering OP), has

been signed, verified and filed by Mr. Sandeep Sahijwani who has been

authorized by M/S Samsung India Electronics Pvt. Ltd. vide a Power of

Attorney (PoA) signed by the Director & Chief Financial Officer, M/S

Samsung India Electronics Pvt. Ltd., to defend, contest, file consumer

court cases in India. A copy of the PoA dated ___/___/________ is

--2--
 annexed herewith and marked as Annexure R-1.

4. At the outset, the OP no. 1 denies each and every statement or contention

which is inconsistent with or contradictory to whatever is stated in this

written statement, and no statement, or contention, not specifically denied

by the OP no. 1, shall be deemed to have been admitted, merely for want

of a specific traverse.

5. That the OP no. 1 wishes to submit the following preliminary objections

which go to the very root of maintainability of the present complaint

before the Hon’ble Forum and as such are required to be considered

before entertaining the complaint on its merit.

II. PRELIMINARY OBJECTIONS:

6. That the present complaint is wholly misconceived, groundless and

unsustainable in law and is liable to be dismissed under Section 26 of

Consumer Protection Act. In the Samsung handset if some defects are

noticed, that will not automatically come within the meaning of

manufacturing defect and there may be possibility for that defect due to

mishandling, improper handling, or any other reasons also which could

be rectified, and that is why, the Consumer Protection Act contemplates,

expert opinion when the defect is not visible, opinion when the defect is

not visible, when the complainant raised complaint regarding display

issues in the handset, the service engineer inspected the said handset

and informed the complainant that the damages in the handset had

occurred due to external force or impact on the said handset, the service

--3--
centre also informed the complainant that that since the damages in

the handset occurred due to physical damages and mishandling done to

the handset, thus the replacement /repair of the said set shall be done

on chargeable basis which was denied by the complainant. That there

were no manufacturing defects in the handset and the defects in the

said handset had happened due to mishandling done to the handset. It

is also pertinent to mention that the service centre was willing to repairs

and replace the defects in the handset but the complainant denied the

same. That the damages in the said handset occurred due to physical

damages and mishandling done by the complainant, thus in that

scenario refund, replacement of the set were not included in the

warranty terms and condition of the said handset.

The Hon’ble Supreme Court of India in the case C. N. Anantharam vs.

Fiat India Ltd. & Ors., AIR 2011 SC 523, (2011) 1 SCC 460, held that

When there is no major or inherent manufacturing defect in vehicle and the

problem complained of has been removed; manufacturing company or agent is not

under the compulsion to replace the same.

A copy of Customer service record is

annexed herewith and marked as Annexure

R-2.

A copy of damaged pictures of the handset

is annexed herewith and marked as

Annexure R-3

A copy of technical report of the handset is

--4--
 annexed herewith and marked as Annexure

R-4

7. That it is humbly submitted that this Hon’ble Forum has no jurisdiction to

entertain and adjudicate upon the dispute involved in the complaint in as

much as it is not a consumer dispute and does not fall within the ambit of

the provisions of the Consumer Protection Act, 1986, hereinafter called the

said Act.

8. That the present complaint is baseless and flagrant abuse of process of law

to harass and blackmail the answering Opposite Parties. At this juncture it

is pertinent to note that the complainant had purchased Samsung handset

on 25-08.2020, Serial No- RZCNB003LQD and Model No. SM-

N986BZNGINS at a consideration of Rs1, 04, 999/- (One Lakh Four

Thousand Nine Hundred and Ninety Nine Only). As per the complainant he

alleged that the said handset was not working properly but suppressed

the support which he received from the Opposite Party.

In M. J. Abraham vs. Angel Agencies & Ors., III (2000) CPJ 544, it has been

held by the Commission that for replacement of product the defect must be

manufacturing defect and for proving manufacturing defects expert opinion is

essential.

Further in Classic Automobiles v/s. Lila Nand Mishra & Anr., [I (2010)

CPJ 235 (NC)] it has been held that the onus to prove the manufacturing

defect was on the complainant and further, it was necessary to obtain expert

--5--
 opinion before saying that there was manufacturing defects.

9. That the complainant had also lodged a complaint at the service centre of

O.P No 3 and proper services were provided to the complainant. When

the complainant raised complaint regarding display issues in the

handset, the service engineer inspected the said handset and informed

the complainant that the damages in the handset had occurred due to

external force or impact on the said handset, the service centre also

informed the complainant that that since the damages in the handset

occurred due to physical damages and mishandling done to the

handset, thus the replacement /repair of the said set shall be done on

chargeable basis which was denied by the complainant. That there were

no manufacturing defects in the handset and the defects in the said

handset had happened due to mishandling done to the handset. It is

also pertinent to mention that the service centre was willing to repairs

and replace the defects in the handset but the complainant denied the

same. That the damages in the said handset occurred due to physical

damages and mishandling done by the complainant, thus in that

scenario refund, replacement of the set were not included in the

warranty terms and condition of the said handset.

10. That it is humbly submitted before the Hon’ble Forum that the

complainant has suppressed material facts, facts which only shows that

there were no manufacturing defects to the handset within the warranty

period and defects found in the set happened due to physical damages

and mishandling done to the handset.

--6--
11. This only shows that there were no manufacturing defects or any defects

in the Handset at the time of sale and that no such defects arose due to

the manufacturing defects. Thus, the present allegations of unfair trade

practices and deficiency in service as alleged by the complainant in his

complaint is a complete abuse of the process of law for illegal gains and to

harass the Opposite parties and which needs to be struck down by the Ld.

Forum at the preliminary stage itself.

The Opposite Parties have acted as per the terms and conditions of

warranty and in compliance with law. Therefore, as per Sec. 2(1)(g) of

Consumer Protection Act these cannot be termed as deficiency in service.

12. That the complainant has not approached the Hon’ble Forum with clean

hands and has suppressed the material facts just to misguide the Hon’ble

Forum. And it is a settled legal preposition that ‘one who seeks justice

must come to the court with clean hands. And as per the terms and

conditions of the warranty, replacement or repair of handset free of cost in

case of physical damages/mishandling of the handset and out of

warranty period or providing compensation was not mentioned in the

warranty card as well. Moreover, no defects /issues due to physical

damages, mishandling, improper handling, or any other reasons, and

defects which could be rectified, for such situation/condition replacement

or repair or refund or compensation is not mentioned in the warranty

card as well.

Further in Bharathi Knitting vs. D.H.L. Worldwide, (1996) 4 SCC 704, the

Hon’ble Supreme court held that in case of specific term in the contract, the

--7--
 Parties shall be bound by the terms of the contract.

13. The OP no. 1 here is willing to carry out the necessary repairs and

replacement of the parts strictly as per the terms and conditions of the

warranty manual. It was further stated that there was, thus, neither any

deficiency, in rendering service, on the part of Opposite Parties (OP) No.

3, nor did they indulge into unfair trade practice, therefore OP no. 1 is not

liable to refund/replace/provide compensation for the said handset as no

manufacturing defects were found by the answering opposite party in the

said set.

A copy of warranty terms and conditions is

annexed herewith and marked as Annexure

R-5.

14. The Opposite Party no. 3 shall be adducing further evidence

substantiating the point that, there was no manufacturing defects or

damages in the said handset and that the answering OP are not liable to

provide repair/replacement/refund or compensation and any effort to

shift liability for illegal gains should be struck down by the Hon’ble

Forum at the preliminary stage itself.

15. That the present case is gross abuse to the process of law and has been

filed with ulterior motives and mala fide intentions and hence needs to be

dismissed. The complainant in this case had stated that the complaint was

filed for defect in the handset but suppressed the fact that the no

manufacturing defects was detected by the service centre and that the

damages in the handset occurred due to physical damages and

mishandling done to handset.

--8--
 16. That the present case is gross abuse to the process of law and has been

field with ulterior motives and mala fide intentions and hence needs to be

dismissed. The complainant claimed refund of the handset along with

18% rate of interest and Rs 50,000/- as compensation which is

inappropriate on the complaint’s behalf and should be dismissed for the

above objections raised by the answering Opposite Party.

17. The complaint is liable to be dismissed on grounds that there was no

deficiency in rendering service, on the part of Opposite Parties, nor did

they indulge into unfair trade practice. That on the first instance no

manufacturing defects was detected by the service centre in the said set

and if no defects or any defects arose outside warranty period due

physical damages, or mishandling of handset were not covered under the

terms and condition of warranty of the said handset.

The Hon’ble National Commission in the case Om Prabha Malviya vs

Godrej Photo Me. Ltd., FA/126/2006 on 9 September, 2011 held that the

appellant failed to prove that the photo imager machine suffered from any

manufacturing defect and there was deficiency in the service rendered by the Ops.

Needless to say the impugned order dismissing the complaint is just and proper

and will have to be upheld, hence the appeal fails and is accordingly dismissed.

III. PARAWISE REPLY:

That before reply to the merits of the case, the contents of the preliminary

objections and the facts of the case shall be treated as the part and parcel

--9--
 of in response to the respective paragraph and anything contrary thereto

or inconsistent there with are wrong and denied and the same is not

repeated for the sake of brevity.

a)That the contents regarding the legal status of each opposite parties are all

matter of record and are related to the purchase details of the mobile and

does not require any specific traversing.

b) That the contents of Para 2 of the complaint though does not concern the

answering OP fully but is accepted to the extent that the complainant did

not lodge any complaint regarding the handset, as far as the development

of problem in the handset is concerned the answering OP refers to the

preliminary objections mentioned above. The complainant may also be

directed by the Hon’ble Forum to produce expert evidence.

c) That the contents of Para 3 are partially denied. The claims of the

complainant are accepted to the extent that a New V Fold 3 model of the

phone was launched and when the complainant went to purchase the said

phone by exchanging his GALAXY NOTE 20 ULTRA BROWN, he was

told that there were certain defects in his mobile and thus it cannot be

exchanged.

d) That contents of para 4 are completely false however, the averments of the

complainant regarding him making the complaint and proper services

being provided to him by the aforesaid O.P are accepted. The complainant

may be directed by the Ld. Forum to produce expert evidence. As to

contents regarding deficient service from OP side, the same are denied.

--10--
 The complainant was informed via email that since his product was

tampered during the warranty period hence he is not entitled to free

services and he would have to bear the expenses of Rs. 21,150 for the

repairs. The Opposite parties did not commit any deficiency in service to

the complainant and is not responsible for any such deficiency in service

or unfair trade practices. All communications by the complainant to the

answering OP company – the same was handled as per company rules

and regulations and the complainant was informed the warranty terms

and conditions in detail and hence anything contrary is denied and

disputed. The details of the communication and management decision as

was communicated to the complainant is mentioned under preliminary

objections.

e) That the contents of Para 5 are accepted as the Opposite Parties have time

and again informed the complainant that replacement/free of cost repair

or refund of the set-in case of Physical damages and mishandlings are

outside the warranty and condition of the handset. Also, the service centre

informed the complainant that the said handset had no manufacturing

defects. That the contention of the complainant for unfair trade practices

and harassment are denied in full and the action of the Ops were in

accordance with the warranty terms and conditions. The complainant was

never told that his mobile would be repaired for free of cost.

f) That the contents of Para 6 are denied. That the answering opposite

parties or their agents, dealers, service centre has not committed any

deficiency of service and unfair trade practice to the complainant and is

not responsible or liable for the payment of any amount to the

--11--
 complainant, and complainant should be put to strict proof of the

contention advanced. It is not the fault of the Opposite Party or their

agents, dealers and service centres if the damage is caused by

manhandling and careless use of the phone by the complainant.

g) That the contents of Para 7 are denied. That the answering opposite party

did not cheat the complainant and the phones manufactured by them are

of extremely high quality. The claim of the complainant that the phone

got damaged within 13 months of purchase is because of the

manufacturing defect is false as the damage to the phone was caused by

the careless use by the complainant.

h) That the contents of the Para 9 are denied. The complainant did not suffer

heavy loss due to poor workmanship and manufacturing defect, he

suffered loss due to his own careless use and he also denied getting the

phone repaired by paying the repairing cost to the service centre. The act

of the answering opposite party in no way amounts to deficiency in

service and Unfair Trade Practices.

i) That the contents of para 9 are denied. The complainant cannot be given

compensation for the mobile purchased by him because first of all

physical damages to the phone are not covered under manufacturing

defect and thereafter one year has already passed since the phone was

purchased hence the warranty has lapsed and thus he cannot claim

compensation or free of cost repair.

j) That the contents of the prayer are denied. The OP shall not be liable to

pay compensations as there were no manufacturing defects found in the

--12--
 said Handset. And therefore, under the terms and conditions of the

warranty of said handset it was not mentioned that

replacement/refund/compensation would be provided in case no defects,

out of warranty period, physical damages or mishandling of the same or

when the O.P is not approached for the defects in the handset.

k) That it is stated that no cause of action ever arose against OP no. 1 – M/S

Samsung India Electronics Pvt. Ltd. or any other OP and there is no

deficiency of service or negligence on the part of the OP no. 1 or their

officials, agents, in light of what is stated above and the same is not being

repeated herein for the sake of brevity.

PRAYER

In the view of the above facts and submission, it is therefore, most

respectfully prayed that this Hon’ble Forum may be pleased to:

a) Dismiss the complaint with exemplary cost in favour of opposite parties

and against the complainant in the interest of justice, equity and good

conscience;

b) pass any other order or orders as this Hon’ble Forum may deem fit and

proper in the facts and circumstances of this case.

The complainant is not entitled to claim any relief either in law or in

--13--
equity against the answering Opposite Parties.

It is prayed accordingly.

Through Advocate for

Opposite Party no. 1

VERIFICATION

I, Mr. Sandeep Sahijwani, Authorized representative of M/S Samsung

India Electronics Pvt. Ltd., Opposite Party no. 1, office at: 8th Floor, DLF

Centre, Sansad Marg, New Delhi- 110001, do hereby solemnly affirm and

declare that the statements made above are true to the best of my

knowledge, information and belief and I sign this verification on this

…………… day of ……………….. 2021.

Place:

Date:

SIGNATURE

--14--
 BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, THIRUVANANTHAPURAM, KERALA

Case No. CC/308/2021

Between

Peter Carmel

________________________________Complainant

And

M/S Samsung India Electronics Pvt. Ltd & Another

____________________________Opposite Parties

Name and Address of the Complainant

Peter Carmel, aged about 70 years, residing at Lovedale,

Valiyakunnu, Kizhuvilam, Attingal, Trivandrum- 695104

--15--
Name and Address of the Opposite Parties

1. M/S Samsung India Electronics Pvt. Ltd., having its registered

office at 8th Floor, DLF Centre, Sansad Marg, New Delhi- 110001,

Represented by its Authorised Signatory

2. M/S Mastrofore, Authorised Samsung Service Centre, TC 3/2238,

1st Floor, Sophiya Building, Thiruvananthapuram- 695004,

Represented by its Manager

LIST OF DOCUMENTS

Sl. DESCRIPTION Pages

No.

1. Power of Attorney of the Authorized

signatory – Mr. Sandeep Sahijwani

from M/S Samsung India Electronics

Pvt. Ltd.

[Annexure R-1]

2. Copy of Customer service record

[Annexure R-2]

3. Copy of damaged pictures [Annexure

R-3]

4. Copy of Technical report [Annexure

R-4]

5. A copy of warranty terms and

condition [Annexure R-5]

--16--
Place:

Date:

--17--