Andhra Pradesh

Nellore

CC/88/2014

P.Ravi Kumar, S/o.P.Sudhakaraiah - Complainant(s)

Versus

1.Univercell Telecommunications Pvt.Ltd Rep by its Proprietor - Opp.Party(s)

Md.Rahimkhan

29 Oct 2015

ORDER

                                                              Date of filing       :  01-12-2014

                                                             Date of disposal   :  29-10-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Thursday, this the 29th day of OCTOBER, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.88/2014

 

P.Ravi Kumar,

S/o.P.Sudhakaraiah

Aged about 27 years,

Residing at 26-14-87,

Near Y.V.L.N. Kalyanamandapam,

B.V.Nagar, Nellore.                                                            …         Complainant

 

                      Vs.

                                                                            

1. Univercell Telecommunications (I) Pvt.Ltd.,

    Rep. by its proprietor,

    # 16-1-187, Opp.Nirmala Agencies,

    Trunk Road,

    Nellore.

 

2. Sony Authorized service centre,

    Reyalaseema Enterprises,

    Rep. by its proprietor,

    16-3-625, Ground Floor,

    1^st Main Road, Rammurthy Nagar,

    Nellore.

 

3. Sony India Pvt.Ltd.,

    Rep. by its managing director,

   A-31, Mohan  Cooperative Industrial Estate,

   Muthura Road,

   New Delhi 110044.                                                      …       Opposite parties

 

This matter coming on 19-10-2015  before us for final hearing in the presence of Sri  Md.Rahimkhan, Advocate for the complainant and  the opposite parties 1 and 2 remained absent and Sri V.Jayarama Rao, Advocate for the 3^rd opposite party having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

 

This consumer case is filed by the complainant against the opposite parties 1 to 3 to direct them jointly and severally liable to refund an amount of Rs.32,241/- towards the cost of handset with interest thereon at 12% p.a., from the date of the its purchase i.e., 08-07-2013 till realization, to pay Rs.20,000/- towards damages for deficiency in service, negligence and unfair trade practice etc caused to the complainant which is committed by the opposite parties and also to grant costs of the complaint and pass such other relief or reliefs as the Hon’ble District Consumer Forum may please to deemed it fit and proper in the circumstances of the case in the interests of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I.(a) It is the case of the complainant that he was attracted by wide publicity, promises and assurances of opposite parties 1 to 3, had purchased Sony Xperia ZR Black C5502 handset mobile for an amount of Rs.32,241/- under invoice No.UAP 1775 650 dated 8-7-2013 from the 1^st opposite party.  The opposite parties had given warranty for one year to the said handset.  While so, in the month of September, 2013 i.e., after 2 months the said handset was stopped functioning.  So, the complainant approached opposite party No.1 and after examining the said handset, opposite party No.1 advised him to approach opposite party No.2 who is the authorized service centre, Nellore.  So, he had approached opposite party No.2 on     09-09-2014 and handed over the said handset to opposite party No.2 who issued job ticket id No.14090901935 and advised the complainant to come after two days.  Till then, the complainant has been approaching several times and the opposite party No.2 has been postponing without any reason so saying that the said handset is under manufacturing defect and further stated that opposite party No.3 will replace the same with a new one or refund its cost.  But inspite of several approaches and requests, the opposite parties did not choose either to replace the same or to refund its cost and thus committed gross negligence and deficiency in service.  So, the complainant has no other go, vexed with the attitude of opposite parties got issued legal notice dated 24-09-2014 to opposite parties calling them to refund its cost with interest and damages.

 

(b)  It is also further submitted by the complainant at page no.2 of his complaint that the opposite parties 1 and 2 even though received the said legal notices from him, had kept quite without giving any reply.  But, the 3^rd opposite party had issued reply given two options stating that exchange the handset with a factory refurbished unit at 50% of MRP price and the other option is exchange the handset with fresh unit at 80% MRP.  These options without replacing the handset with a new one clearly show goes to that the unfair trade practice and negligence of deficiency in service.

 

 

   ( c )  It is also further submitted by the complainant at page no.2 of his complaint that it is the legal and bounden duty of opposite parties to replace the new handset  defective free in place of defective handset supplied or to refund its cost.  But, without doing the same, the 1^st opposite party had simply issued a reply with all false and baseless allegations and further imposing conditional options which are untenable under Law.  The acts of the opposite parties clearly go to show that they sheer their negligence and deficiency in service.  The complainant had lost his faith with the service of opposite parties.  So, the complainant had purchased for the said handset for a huge amount of Rs.32,241/- from his hardly earnings with a pond hope that the said handset will work effectively as promised by the opposite parties.  But all his hopes are in vain due to unfair trade practice, negligence and deficiency in service of opposite parties.  The complainant had suffered alot of mental agony, financial loss and inconvenience.  The said defective handset is also with the opposite parties and due to that the opposite parties are liable to refund of the said handset  with interest and damages.

 

(d)  There are causes of action which are narrated at page no.3 of complaint  and the Hon’ble Forum has jurisdiction to try the said complaint of the complainant.  Hence, the complaint.

 

II.  DEFENCE:

(a)  The 3^rd opposite party was resisted the complaint by filing a written version/counter dt.25-03-2015 denying the allegations of the complainant.  The allegations in the complaint are false and the complaint is not maintainable either in law on facts.  The complaint is vexatious, and baseless and his more of the abuse of due process of law.  The 3^rd opposite party had filed his preliminary objections as well as reply i.e., written version by stating that 3^rd opposite party is engaged in the business of distributing and marketing of mobile phones and other electronic goods under the brand name of “SONY” and it holds an impeccable position in the mobile phone industry in India.  It is submitted that the mobile phones of Sony India Pvt. Ltd. are sold to customers through a network of its authorized dealers and the after sales services on those mobile phones are provided through a network of its authorized service centers across the country.

 

(b)  It is also further submitted by the 3^rd opposite party in para – 3 and page no.2 of its reply/written version that the liability of the 3^rd opposite party lies strictly in accordance with terms and conditions of warranty provided on its products and 3^rd opposite party cannot be liable for the claims which are falling outside the hope of the warranty.  It is further submitted by the 3^rd opposite party that in case the customer faces any problem with regard to handset within the period of warranty, he is required to produce the handset along with the proof of the purchase to the authorized service centre of Sony India Pvt. Ltd. in order to get necessary support and it could be discretion of the 3^rd opposite party whether to replace the product or to carry out the repairs.    

 

( c )  It is further submitted by the 3^rd opposite party in paras-5 and 6 and page no.4 of its reply/written version that the complainant had approached the 2^nd opposite party for the first time on 09-9-2014 i.e., after using the said phone for more than one year after the date of purchase.  When the complainant approached the 2^nd opposite party at that time said phone was out of warrant period.  Even after the expiry of the warranty period of the said handset, the service engineers of the 2^nd opposite party inspected it and upon physical inspection found it to be physically damaged due to external fact and defect evidence of damage on the display panel.  Therefore, the complaint was informed that since the handset was beyond the period of warranty, the said handset will be repaired on a chargeable basis.  So, the complainant was refused to get the handset repaired on a chargeable basis and took it on the very same day.  Thereafter, the complainant addressed  a false and frivolous legal notice to the opposite party’s threatening to initiate malicious legal action if he was not given  a refund of the purchase value of the said handset.

 

(d)  It is further submitted by the 3^rd opposite party in paras-7 to 9 and page nos.4 and 5 of its reply/written version that a legal notice of the complainant was duly replied by Sony India (P) Ltd. vide its letter dated 9-10-2014 reiterating that  the said handset  was found to be damaged due to external cause and its repairs could not be carried out under the warranty.  However, in order to maintain customer’s satisfaction, the complainant was given  an option to exchange the said handset with refurbished handset at 50% M.R.P.  or a fresh handset  at 80% of the M.R.P.  However, the complaint was refused  to the aforesaid offers and had filed present complaint in order to make wrongful gain from the opposite parties.  The opposite parties had offered to replace the handset of the complainant on a discount price even after the expiry period of the warranty.  The above said offers have been blatantly rejected by the complainant clearly evidencing his ill-intentions in present case.  The above said offers were made to the complainant only as a gesture of goodwill and to maintain customer’s satisfaction.  As per the terms of the warranty, the opposite parties are liable only to provide repairs of the handset within a period of one year from the date of the purchase.  So,  no liability can be affixed on the  opposite parties since the period of warranty had in any case expired and the said handset had also been damaged externally which would have rendered the warranty void, had the said handset been within the period of warranty.

 

(e)    It is further submitted by the 3^rd opposite party in paras-10 to 12 and page nos.6 and 7 of its reply/written version that the present complaint had been filed without any cause and it is an attempt to malign the well established reputation of Sony India (P) Ltd. and to make wrongful monetary gains from the opposite parties.  The opposite parties have been willing to provide maximum support to the complainant with respect to the said handset even after the expiry of the warranty period of the said handset.  So, the complainant is not entitled to the reliefs as claimed by way of present complaint.  No cause of action has arisen to file the instant complaint before the Hon’ble Forum and hence a complaint is liable to be dismissed with costs. 

 

III.  The complainant had filed an affidavit on 30-07-2015 as PW1 and he had also filed his written arguments on 14-10-2015 before this Forum and the documents which are marked on his behalf as Exs.A1 to A5, whereas the opposite parties have also filed documents which are marked on their behalf as Exs.B1 to B3,  the 3rd opposite party filed an affidavit as RW1 and also filed written arguments on 13-08-2015 in support of their case. 

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

 

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V.  POINTS 1 AND 2 :

 

     In view of these two points are inter-dependent with each other, we have taken up together for discussion and determination of the case. The complainant has reiterated the facts of the case once again. The repetition of the facts of the case, is avoided here.

 

Oral Submissions by the learned counsel for the complainant:

 

    The learned counsel for the complainant Sri Md.Rahimkhan has vehemently argued that the complaint, chief affidavit, and written arguments of the complainant may be read as part and parcel of his oral arguments.  He has also further argued that the complainant had purchased handset for Rs.32,241/-.  It is an admitted fact by the opposite parties.  The warranty period of the said handset is 8-7-2013 to 7-7-2014.  The complainant had approached the opposite parties 1 to 3 after the warranty period and prior to that he had approached the opposite parties 1 to 3 after the warranty period and prior to that he had approached the opposite parties in May, 2014 and also 09-9-2014.  The said learned counsel for the complainant has filed the documents Exs.A1 to A5, Exs.A1 is the tax invoice for Rs.32,241/-; Exs.A2 is the service job-sheet dt.09-09-2014; Exs.A3 and A4 are the legal notice and reply notice and Ex.A5 is an acknowledgement.  These documents are established of the allegations of complainant and they are established of the allegations of complainant and they are proved by documentary evidence.  The contention of the said counsel for the complainant is that it is the duty of opposite parties to sell good quality defective free handsets having collected huge amount of Rs.32,241/- under Ex.A1.  The complainant had purchased handset with a fond hope that it will work without any defect but it is otherwise.  Finally, the said learned counsel for the complainant has prayed that the Hon’ble Forum may pleased to allow the complaint as prayed for in the interests of justice.

 

Oral Submissions by the learned counsel for the  opposite parties:

    On the otherhand Sri V.Jaya Rama Rao, the learned counsel for the opposite party No.3 has also vehemently argued that the written version, chief –affidavit and written arguments of opposite parties may be read as part and parcel of his oral arguments.  He has further argued that even though the warrant of the said handset for one year, then after one year also, the opposite parties had taken up the hand set for repairs.  The complainant had refused to get the handset repaired on a chargeable basis and took it on the very same date i.e., on 09-09-2014 itself.  The said handset of the complainant was found to be damaged due to external cause and its repairs would not be carried out under warranty.  The opposite parties have given to the complainant several options but he had shown a deaf ear.  As a gesture of goodwill and to maintain customer satisfaction, opposite parties have came forward but the complainant with an evil intention to get wrongful gain, he had filed this complaint to harass the opposite parties.  The said learned counsel for opposite parties, finally prayed that the Hon’ble Forum may be pleased to dismiss the complaint with costs.

 

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of chief affidavits.  Oral arguments of the parties are advanced in support of their case.

   Now, the core point is that whether the complainant is entitled to reliefs as prayed for.  It is undisputed fact that the complainant had purchased the said handset under Ex.A1 from the opposite parties.  The complainant has purchased it with his hard earnings with a fond hope that it will be free from defects but in reality it stops working and frequent repairs during the warrant period also.  He has filed the relevant documents such as Exs.A1 to A5.  His allegations are against the opposite parties about the said handset, appears to be true and they are proved with documentary evidence.  Recklessness of the opposite parties, is evidence from them.  There is a negligence, unfair trade practice and deficiency in service on the part of the opposite parties towards the complainant.  Mental worry cannot be measured in terms of money.   Compensation for mental agony and stress of the complainant, is crytal clear.  Service provider must be vigilant before selling the product to the purchaser.  We are of the considerable opinion that there is a clear deficiency in service on the part of the opposite parties towards the complainant.  Proceedings before the consumer For a are inquisitorial but not adversary.  Consumer For a confers equity jurisdiction to deal with the cases of disputes between the parties on the principles of natural justice.  Keeping in mind of the basic principles of law, we are disposing consumer disputes between the parties. These two points are held in favour of the complainant and against the opposite parties 1 to 3, accordingly.

 

POINT NO.3:    In the result, the complaint is allowed in part, ordering the opposite parties 1 to 3 are jointly and severally liable to refund an amount of Rs.32,241/- (Rupees thirty two thousand and two hundred and forty one only) to the complainant towards the costs of the handset  mobile with interest at 9% p.a., from the date of complaint i.e., 01-12-2014 till realization; to pay Rs.3,000/- towards damages for their deficiency in service, negligence and unfair trade practice and  also to pay Rs.2,000/- (Rupees two thousand only) towards costs of the complaint within one month from the date of the receipt of the order.                                                                                                                                 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 29th day of October,              2015.    

 

              Sd/-                                                                             Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

30-07-2015

:

P.Ravi Kumar, S/o.P.Sudhakaraiah, aged about 27 years, residing at 26-14-87, Near Y.V.L.N.Kalyanamandapam, B.V.Nagar, Nellore.

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

25-03-2015

:

Meena Bose, D/o.Late Shri Vinid Rai Jasapara, available at Sony India Private Limited, A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi – 110044.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	08-07-2013	:	The Tax invoice having No.UAP 1775650 issued by the 1st opposite party in favour of the complainant.
Ex.A2	09-09-2014	:	The service job sheet under job ticket id No.14090901935.
Ex.A3	24-09-2014	:	Legal notice got issued by the advocate for the complainant to the opposite parties.
Ex.A4	09-10-2014	:	The reply notice got issued by 3rd opposite party to the counsel for the complainant.
Ex.A5	-	:	Acknowledgement of OP1.

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	04-07-2011	:	Copy of the resolution adopted by the board of directors of Sony India Pvt.Ltd., in their meeting.
Ex.B2     Ex.B3	-     09-10-2014	:     :	Copy of (important information) warranty terms as provided by Sony India Pvt.Ltd.   Copy of letter addressed by the opposite party No.3 to the counsel for the complainant.

 

               Id/-                                                                                    PRESIDENT(FAC)

 

Copies to:

 

1. Sri Md.Rahimkhan, Advocate, Nellore.

                                                             

     2) Univercell Telecommunications (I) Pvt.Ltd.,

 Rep. by its proprietor,  # 16-1-187, Opp.Nirmala Agencies,

    Trunk Road, Nellore.

 

     3) Sony Authorized service centre,  Reyalaseema Enterprises,

 Rep. by its proprietor,  16-3-625, Ground Floor,

    1^st Main Road, Rammurthy Nagar, Nellore.

 

    4) Sri V.Jayarama Rao, Advocate, Nellore.