2020(3) ALL MR (JOURNAL) 62
Delhi High Court

JUSTICE PREM NARAIN

Sona Gupta Vs. Samsung India Electronics Private Limited & Anr.

Revision Petition No.1171 of 2017.

12th March 2020.

Petitioner Counsel: Mr. SOMDUTT GUPTA
Respondent Counsel: Ms. MEENAKSHI MIDHA, Mr. ZAHID ALI
Act Name: Consumer Protection Act, 1986

HeadNote : Consumer Protection Act (1986), Ss.2(1)(d), 12 – Consumer complaint – Deficiency in service – Complainant claiming that call recording function is not available in mobile phone, though it was mentioned on packing of phone – After engineer of company demonstrated that call can be recorded, complainant agreed that call can be recoded but date, time and name of caller cannot be recorded – Pamphlet of phone mentions that it can record calls which can be used as evidence – Call recording can be used for evidence only if date, time and name of caller is also recorded – No evidence filed by complainant in support of his case nor by opposite party-company to deny allegations – Claim of unfair trade practice not proved – However, as company could not demonstrate facility and complainant is not satisfied with phone, only remedy is to return phone to company and to pay cost of phone along with compensation to complainant. (Para 9)

Section :
Section 2(1)(d) Consumer Protection Act, 1986 Section 12 Consumer Protection Act, 1986

Cases Cited :

JUDGEMENT

JUDGMENT :- These revision petitions have been filed by the petitioner Sona Gupta against the order dated 07.04.2017 of the State Consumer Disputes Redressal Commission, Uttar Pradesh (in short ‘the State Commission’) passed in Appeal No.2697 of 2013 & 2415 of 2013.

2. Brief facts of the case are that the petitioner/complainant purchased a mobile Samsung Star Nxt for about Rs.7,000/- from the Parag Mobile (dealer) opposite party No.1 in the original complaint case. It is the case of the petitioner/complainant that this phone was advance phone where call can be recorded. The cover of the packing of this phone also mentions the “Leading the Touch Revolution Call Record Yahoo Messenger”. However, the petitioner/complainant observed that the phone had only a voice recorder and not the call recorder, therefore, the complaint was filed before the District Consumer Disputes Redressal Forum, Mainpuri, (in short ‘the District Forum’) bearing CC No.62 of 2013. The opposite parties resisted the complaint by filing the written statement. The District Forum decided the complaint vide its order dated 30.09.2013 as under:-
“18. The complaint of the complainant against the O.Ps. for recovery of Rs.3,00,000/- (Rupees Three lacs) from the O.Ps. is allowed. O.P.No.1 shall pay Rs.1,00,000/- (Rupees one lac) to the complainant and O.Ps. No.2 and 3 shall pay Rs.2,00,000/- (Rupees Two Lacs). All the three O.Ps. shall also pay Rs.5,000/- as costs. On this amount, 7 percent per annum interest shall also be payable from the date of filing of the complaint i.e. 22.5.2013 till actual payment.
19. Accordingly, the O.Ps. are ordered to pay ordered amount to the complainant within one month from the judgment.”

3. Aggrieved by the order of the District Forum, the opposite party No.1 preferred appeal No.2415 of 2013 before the State Commission. Similarly, Samsung India Electronics Pvt. Ltd. preferred appeal No.2697 of 2013 before the State Commission. The State Commission vide its order dated 07.04.2017 decided both the appeals as under:-
“Both the appeals No.2697 of 2013 and Appeal No.2415 of 2013 are hereby allowed. The judgment and order dated 30.09.2013, passed in complaint No.62 of 2013 is set aside and the complaint is hereby dismissed.
Copy of this judgment be placed on Appeal No.2415 of 2013.
Both the parties shall bear the costs of appeal.”

4. Hence the present revision petitions.

5. Heard AR of the petitioner and the learned counsel for the respondents in both the cases.

6. AR of the petitioner stated that there is no call recording facility in the mobile phone whereas the box in which the mobile phone was packed clearly mentions “Leading the Touch Revolution Call Record Yahoo Messenger”. AR of the petitioner stated that call recording means that it should record not only the voice incoming or out going in a call but should also record the date, time and the name of the person, who is talking to the mobile holder. AR of the petitioner stated that this mobile only has the voice recorder and cannot record the call incoming or outgoing. It was ordered by this Commission that the Engineer of the Samsung India Ltd. should be present to demonstrate what is meant by call recording in this phone. The Engineer demonstrated that the call can be recorded. However, the AR of the petitioner then stated that even if the call is recorded it does not give the time and date or the name of the person and therefore, the same cannot be used for any evidence. During demonstration, AR of the petitioner stated that the call can be recorded, but the date, time and name is not being recorded, that is why the mobile does not have actual facility of call recording. No further demonstration in this regard was made by the opposite party Company.

7. On the other hand, learned counsel for the respondent/opposite party stated that State Commission has considered the issue involved in the present case and has reached to the conclusion that there is no deficiency on the part of the opposite party. As no expert report was filed either by the complainant or same was obtained by the District Forum, without any expert report, it cannot be observed by the District Forum that there is no call recording in the mobile phone. Earlier the complainant was saying that the mobile has only a voice recorder and not the call recorder. When the Engineer has given demonstration, the complainant has agreed that this mobile phone can record the calls. No details of call recording are given on the box of the mobile phone. The details of the mobile phone printed on the piece of paper inside the box reads as under:-
“Call Recording Record conversation while speaking and use them for right evidence.”

8. From the above, it is clear that the mobile phone records conversations and the same is agreed to by the AR of the petitioner. There was a warranty period for the mobile phone and if the complainant was not satisfied with the functioning of the phone the complainant should have approached the dealer or the service centre of the manufacturer for removing these defects. When the mobile phone was purchased, the complainant should have checked all the functions of the mobile phone and then only after full satisfaction, the mobile should have been purchased. The Engineer of the Samsung India Ltd. has already demonstrated that call can be recorded in this phone. Thus, there is no error in the order of the State Commission and the same should be upheld.

9. I have carefully considered the arguments of both the sides and examined the material on record. The State Commission has allowed the appeals of the opposite parties mainly on the ground that there was no expert report before the District Forum and still the District Forum allowed the complaint. The stand of the complainant earlier was that a call cannot be recorded in this mobile phone, however, when the same was demonstrated by the Engineer of Samsung India Ltd., AR of the petitioner agreed that call can be recorded, but the date, time and name of the caller cannot be recorded. It is seen that in para 5 of the complaint, it is stated by the complainant that actual call recording means not only the voice recording but date, time of the call and name of the caller also. The opposite party No.1/dealer in its written statement has only replied that contents of para 5-6 are denied. Nothing is mentioned about the call recording facility. The Engineer of Samsung India Ltd. also did not demonstrate whether mobile was recording the name of the caller and date and time of the call. It is true that the pamphlet of the phone mentions under the heading of “Call Recording” that it records conversations, which can be used for evidence. It is clear that the same can be used only for evidence if the date, time and name of the caller is also recorded. All the smart mobile phones generally record the date, time and name of the caller. In fact, no evidence has been filed by the complainant to prove his case, and similarly even the opposite party has not filed any evidence to disprove the allegation of the complainant about non-recording of date, time and name of the caller while recording call. Without any evidence, no view can be expressed whether the mobile phone actually records the date, time and name of the caller when a call is recorded. It was the duty of the Engineer of the opposite party No.2 Company to have demonstrated the recording of date, time and name of the caller while recording the call. Though the claim of unfair trade practice on the part of the opposite party is not proved, however, if a facility could not be demonstrated before this Commission and the complainant is not satisfied with the phone, the only remedy is that the phone is returned to the opposite parties and the opposite parties pay the cost of the phone along with some compensation. In my view, the ends of justice will meet, if the opposite party No.2 take back the phone and pay Rs.10,000/- to the complainant. The opposite party No.2 in the original complaint i.e. the manufacturer shall pay Rs.10,000/- (rupees ten thousand only) to the complainant and will get the mobile collected from the complainant. The period for compliance is four weeks from the date of receipt of this order. The Revision Petition Nos.1171 of 2017 and 992 of 2018 are disposed of in terms of this order.

Decision : Ordered accordingly.