FA  772  of 2011  against C.C.   40/2010,  Dist. Forum, Warangal

Between:

P. Praveen Kumar

S/o. Ramaiah

Advocate,

H.No. 8-7-176, Station Road

Warangal.                                                    ***                         Appellant/

Complainant

                                                                   And

1)  Sony Ericsson Communications

(India) Pvt. Ltd.

Rep. by its Manager

4^th Floor, Daka House

18/17, WEA Karol Bagh

New Delhi-110 005.

2)  Hitesh Electronics

(Sony Exclusive)

Rep. by its  Managing Director

Sony Products  Authorized Dealer

H.No. 1-7-1079, Beside SBH

Nakkalagutta, Hanamkonda

Warangal Dist.

3)  Anu Mobile Gallery

Rep. by  its Manager

Sony Ericsson  Certified Service Centre

2^nd Floor, Shop No. D-28-29

Green Square  Plaza Complex

Opp. Public Garden

Hanamakonda, Warangal Dist.                   ***                         Respondents/

O.Ps

Counsel for the Appellant:                          P.I.P.

Counsel for the Respondent:                       M/s. AVD  Narasimha Rao  (R1)

                                                                   R2 & R3 - Served

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

                                            SMT. M.SHREESHA, MEMBER

&

                                            SRI S. BHUJANGA RAO, MEMBER

THURSDAY, THE THIRTIETH DAY OF AUGUST TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President )

***

1)                 Appellant is unsuccessful complainant.

2)                The case of the complainant in brief is that  he  purchased  Sony Ericsson  mobile phone  on 30.10.2009 for Rs. 8,800/-  from Op2 authorised dealer  manufactured by Op1.    It was represented that  if there were any problem  within the warranty period  he could get it rectified  at their service centre  Op3.    About a  month ago,  the cell phone started giving  trouble such as ‘no answering’  while talking to others.  The phone has  become  faulty within the warranty period  viz., by 30.10.2010.    Accordingly,  he took it to Op3  on 14.5.2010 which in turn  mentioned that the phone was dead because of liquid damage.   This was with oblique intention.   Despite his repeated  visits  Op3 did not attend to it.  In fact he was using the phone with utmost care and caution by  keeping in a leather pouch, and there could not be any liquid damage.    This fact was informed to Op1 as well as Op2.  However they did not attend to the problem.   Therefore they were jointly and severally liable.    He suffered a  lot of mental agony and lost clients,   who could have come to his office for registration purpose. He could have got  Rs. 1 lakh towards consultation fee.  Therefore he filed the complaint to direct the opposite parties to replace the phone with a new one, pay compensation of Rs. 1 lakh and costs of Rs. 50,000/-.

3)                 Ops 2  & 3 resisted the case.   While denying  various allegations made in the complaint it alleged that  the cell  phone was handed over  in good working condition and the same was  functioning properly,  and no defect was found.  After  a lapse of  six months i.e., on  14.5.2010,   after using the phone  without following  the guidelines  for care and safe use  as per the booklet,  supplied to him, he brought it.   After testing,  it was found that  there was liquid damage.    It was a reputed organization selling number of phones without  any defect.   When the cell phone was brought to it Op3 found that the phone was dead due to liquid damage  the cell phone might have  fell into  water or water container.   The  phone became dead. It  was not functioning.   Therefore they rejected.  In fact it was sent to Op2 for repairs  by its  work order dt. 14.5.2010. The said fact was informed to the complainant.  In order to have wrongful gain, he filed the complaint which was  liable to be dismissed with exemplary costs. 

4)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A4 marked while the opposite parties filed the affidavit evidence of  Op3  and got Ex. B1 & B2 marked. 

5)                 The Dist. Forum after considering the evidence placed on record opined that cell phone was damaged when it fell into some liquid.  This  fact was mentioned in the very job card Ex. B2.  As per condition No. 3  at page-36 of Ex. B1   terms and conditions there was a categorical mention that  it would not liable for any damage caused due to liquid.   Therefore, the complaint was dismissed. 

6)                 Aggrieved by the said order, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.  It ought to have seen  that   Ex. A2  service  job sheet shows the condition of the mobile,  it was good.  It did not give any credence to the said report.    It ought not to have given credence to Ex. B2  job card when the phone was having defect of ‘no answer’ and that the phone was dead.  Since there was defect in the phone,    he prayed that the complaint be allowed.

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the complainant  had purchased a mobile phone on  30.10.2009  for Rs. 8,800/-  evidenced under receipt Ex. A1 from Op2 dealer.   For the first time on 14.5.2010, seven months after  the purchase, he complained that the phone was not working  and while  answering the calls the phone was becoming  faulty.    Op3 authorised service centre  after testing the same   made a mention  in Ex. A2   under the coloumn 

Engineer Remarks :  ‘Rejected because of liquid damage’.    The complainant issued a legal notice  on 2.6.2010, fifteen days thereafter alleging that  mobile piece was defective.   The complainant did not take the said piece to  any mechanic or any other authorised service centre  to rebut the  fact mentioned in Ex. A2.    He could not prove that there was any other manufacturing defect  in order to repel the contention of the opposite parties that it was not functioning due to ‘liquid damage’.    It is not as though the complainant was not aware as to the reason why  the phone was not rectified.   On the very same day  Ex. A2  was given to him with a remark that it was rejected due to liquid damage.   The complainant being an advocate  ought to have taken it  to any other  authorised mobile servicing centre  to prove that there was no liquid damage, and that there was no fault on his part.    If really the phone was defective and that there was manufacturing defect,   he could not have used it for about seven months.  The very warranty is for one year.   When the complainant could not establish that  there was no liquid damage, it cannot be said  that there was manufacturing defect.    

9)                We reiterate that   in Ex. B1 booklet supplied  to him  there  was a categorical mention  under the heading  ‘Conditions’  at page- 76  “ The warranty does not cover any failure of the product due to  normal tear and wear  or due to misuse, including but not limited  to use in other than the normal  and customary manner, in accordance with  the Sony Ericsson Instructions  for use and maintenance  of the product.   Nor does  the warranty cover  any failure  of the product due to accident, software or hardware modification or adjustment, acts of God or  damage resulting from liquid.”    When there was clear exclusion  of liquid damage it cannot be said that  there was manufacturing defect  nor they were liable to replace it with a new one.  We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.  We do not see any merits in the appeal.

10)               In the result the appeal is dismissed, however, no costs. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER

3)      ________________________________

 MEMBER

*pnr                                                                               30/08/2012

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