BEFORE THE DAKSHINA KANNADA DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

MANGALORE

Dated this the 12^th May 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.430/2015

(Admitted on 18.12.2015)           

Sanath Kumar Rai,

S/o. Seetharam Rai,

Ayur Enterprises,

Near Sona Opticals,

Puttur Centre Building,

Taluk Office Road,

Puttur Taluk, D.K.

                                                                    ……… Complainant

(Advocate for Complainant by: Sri SD)                                                                                                       

VERSUS

1. Managing Director,

Sony India Pvt.Ltd,

A.31, Mohan Co Operative, Industrial,

Estate, Mathura Road, New Delhi 110044.

2. Managing Director,

Filpkart. com,

WS Retails Services Pvt. Ltd,

Khasra No. 435, Road No.#4,

Laldora Extensio, Mahipalpur,

                  Delhi 37

3. Proprietor,

M/s. Coretech Services,

G.1, Maurishka Towers,

Bendoor, Mallikatte Road, Kadri,

                  Mangalore 02

                                                                                         …. Opposite Parties

         (Opposite Party No.1 by: Sri PKS)

         (Opposite Party No.2 by: Sri BB)

          (Opposite Party No.3: Ex-parte)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in hand set as against the opposite party claiming certain reliefs.
2. The brief facts of the case are as under:

          The complainant had purchased Sony Xperia M dual Sim Phone Model No. MOBDN9RG5FAVGQH with IMEI No.358098053247641 from the 2^nd Opposite Party on 21.12.2013 for Rs.13,499/ and the 1^st   Opposite Party is the manufacturer and the 3^rd Opposite Party is the authorize service center.  The above phone has one year warranty from the date of purchase.  Within 7 days of the purchase phone was not functioning properly and the phone used switch off and the starter button was not functioning.  Thereafter the complainant has called the 2^nd Opposite Party and as per advice the complainant took the phone to the 3^rd Opposite Party for repair.  The 3^rd Opposite Party after examining the phone has upgraded the software.  But the problem again resurfaced within 4 months.  Hence once again the complainant took the phone to the 3^rd Opposite Party for repair and 3^rd Opposite Party has changed the starter button and charged Rs.591/ for the repair as per job sheet no. W114053001214 dated 30.5.2014 and the 3^rd Opposite Party has kept the mobile phone for 10 days but the mobile phone has stopped working , hence complainant sent mail to the 1^st Opposite Party and the complainant received the reply stating that resolution at the earliest but not take any action in this regard. Hence the complainant issued lawyers notice to the Opposite Parties. The 1^st and 2^nd Opposite Party has issued false reply.  Hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction to the Opposite Party to refund of Rs.13,499/ with 12% interest from 21.12.2013 till payment and to pay Rs.30,000/ towards compensation and further pay Rs.20,000/- towards expenses, and such other reliefs.

II. Version Notice served to the opposite parties by RPAD, the Opposite party No. 1 and 2 appeared through their counsel and filed version. Opposite Party no.3 not present hence placed exparte. Opposite Party admitted that the purchased mobile phone is defected due to Power button not working.  However, after verifying by the service engineer of Opposite Parties, it was found that the power button/link FPC damaged in the said handset due to complainants own misuse or mishandling, for which only the complainant was liable. It was communicated to the complainant that evidently this is a case of physical damage caused hence warranty is rendered void and Opposite Parties are willing to repair the set but the same would be done on payment of charges.  The estimate for repair for Rs.591/ was also handed over to the complainant.  But the complainant rejected the offer of the Opposite Parties and was adamant for free repair. 

          The physical damage and therefore free of cost repair would not be possible under warranty terms. The Hon’ble Supreme Court of India in Bharathi Knitting co. V/s DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 SC 2508 up held the decision of the Hon’ble National Consumer Disputes Redressal Commission holding that the terms of warranty were binding on the parties and that the liability undertaken in contract between parties should be limited to extent undertaken and the warranty terms in the present case clearly mention that in case of external damage to the handset, the warranty terms would be rendered void.  It is submitted that the warranty on the said mobile phone was subject to certain terms and conditions which are specifically mentioned on the warranty card.  The relevant terms of warranty provided by the Opposite Party No.1 is, Subject to the conditions of this limited warranty, sony warrants this product to be free from defects in design, material and workmanship at the time of original purchase by a consumer, and for a subsequent period of one year which is the warranty period  if, during the warranty period this product fails to operate under normal use and service, due to defects in materials or workmanship, the sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein The Opposite Party No.2 filed version as a reseller, its involvement in the entire transaction is limited only to selling the products of various manufacturers to the end consumer.

          The Opposite Party nO.2 is an online reseller registered as a seller on flipkart. The Opposite Party no.2 is not a manufacturer but only an online retailer and the products sold by Opposite Party no.2 carry warrantee issued by the respective manufacturers.  In the present case the mobile phone is manufactured by Opposite Party no.1 and the mobile phone carries the warranty issued by the manufacturer against manufacturing defects subject to the terms and conditions determined by them only.  The warranty is not provided by Opposite Party no.2 and is provided by the Manufacturer and authorized service center only and further the product was delivered to the complainant in a sealed box condition as it was received from the manufacturer.

III.  In support of the above complaint, the complainant Sanath Kumar Rai, filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 and C9. Opposite Parties not lead any evidence hence treated nil.

IV.   In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that purchased Sony Xperia M Dual sim mobile set from the 21.12.2013 opposite parties found to be defective?
2. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
3. If so, for what relief and from whom the complainant entitled?
4. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) to (iii): As per Affirmative

Point No. (iv): As per the final order.

REASONS

V.POINTS No. (i) to (iii): The complainant in order to substantiate the averments made in the complaint filed affidavit supported by the documents.  The Ex C1 is the tax invoice dated 21.12.2013.  Which shows that the complainant paid Rs. 13,499/ for purchase of handset.  The Ex C2 is the warranty card, Ex.C3 jobsheet, Ex.C4 and C5 the communication letters.  From the above documents revealed that the new hand set purchased by the complainant is not working within warranty period. As per Ex.C3 which shows that the Opposite Party failed to maintain the quality or standard which is required to be maintained. It is settled position that a person purchased a new hand set only for his/her use and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the case of the hand due to such snags.  Similarly in the present case, the complainant purchased the hand set by paying Rs. 13,499/ even thereafter in complainant approached the Opposite Party with several problems it shows the quality and standard of manufacturing of the product sold by the Opposite Party. The Opposite Party cited ruling along with version stating that the terms of warranty were binding on the parties but ruling not placed before the fora and also the terms and conditions of the warranty is not reveals in the warranty card.  Therefore with out documents the contention raised by the Opposite Party not taken in to consideration. Generally, if the mobile hand set has manufacturing defect is to be borne by the manufacturer.  That would not mean that, the dealer is absolved from joint and several liabilities.  As we know, the manufacturer not deals with the customers directly dealer having received the amount under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile hand set.  As we know, the contract through dealer/service provider, private of contract is with them.  To ensure execution expeditiously and immediately, if necessary by making the payment/ replacement to the complainant initially and then it would be for the dealer to claim reimbursement from the manufacturer.  Further, Opposite Party no.3 herein is the service center the Ex.C3 service job sheet issued from the Opposite Party it contained that the mobile phone is within the warranty.  The allegation of the complainant that Opposite Party No.3 charged the starter button for Rs.591/ but after repair the mobile phone once again stopped working, hence it shows that the purchased mobile is defective within the warranty period.  Since the Opposite Party No.3 is the service center the liability of the service center is for some extent in this case. After repair Opposite Party No.3 handed over the mobile handset to the complainant but charged for Rs.591/ within warranty period is committed deficiency in service therefore Opposite Party no.3 also equally liable for the same.  Hence the dealer manufacturer and the service center are jointly and severally liable for the defect found in the mobile hand set in this case.

In view of the above said reasons, we hold that the Opposite Party No.1 ,2 and 3 are jointly and severally shall refund of the cost of the mobile hand set of Rs. 13,499/ by taking back the defective hand set and also pay of Rs. 10,000/ as damage to the complainant for the inconvenience and harassment caused.  Further pay Rs. 5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order.

 In the result, accordingly we pass the following Order:

ORDER

The complaint allowed.  The Opposite Party No.1, 2 and 3 are jointly and severally shall refund of the cost of the mobile hand set of Rs.13,499/ by taking back the defective hand set and also pay of Rs.10,000/ as damage to the complainant for the inconvenience and harassment caused.  Further pay Rs.5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order.

          In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 9% per annum on the above said total amount from the date of failure till the date of payment.

          Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.

(1 to 8 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 12^th May 2017)                               

              MEMBER                                              PRESIDENT    

     (LAVANYA M.RAI)                         (VISHWESHWARA BHAT D)

D.K. District Consumer Forum                  D.K. District Consumer Forum

           Mangalore.                                       Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1: Sanath Kumar Rai

Documents marked on behalf of the Complainant:

Ex.C1: 21.12.2013: Tax invoice.

Ex.C2: Warranty card.

Ex.C3: 30.5.2014: Service job sheet issued by 3^rd Opposite Party.

Ex.C4: 18.7.2014: Gmail sent to 1^st Opposite Party.                             

Ex.C5: 18.7.2014: Reply of the 1^st Opposite Party.

Ex.C6: 12.9.2014: O/c of the regd lawyers notice.

Ex.C7: 8.10.2014: Reply of the 1^st Opposite Party.

Ex.C8: 30.9.2014: Reply of the 2^nd Opposite Party.

Ex.C9: 13.9.2014: Postal acknowledgement of 3^rd Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:   

Nil

Dated:  12.5.2017                                       MEMBER