Delhi

North East

CC/155/2016

Shri Vinay Gupta - Complainant(s)

Versus

Aesol - Opp.Party(s)

07 Aug 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 155/16

 

In the matter of:

	Shri Vinay Gupta S/o Shri Bishan Swaroop R/o:- A-27/8-A, Chet Ram Gali Maujpur, Delhi-110053	Complainant
	Versus
1         2       3	AESOL Registered Office at: D-3136-39, Oberoi Garden Estates Chandivali, Andheri (East) Mumbai-400072   Tara Electronics 324, Chandni Chowk, (Near Haiderquly) Delhi-110006   Sony India Pvt. Ltd. Registered Office: A-31, Mohan Co-operative Industrial Estate Mathura Road, New Delhi-110044		Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

20.06.2016 07.08.2020 07.08.2020

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1.  Brief facts of the present complaint are that the complainant had purchased a Sony D6653 mobile phone manufactured by OP3 from OP2 on 24.06.2015 for a sum of Rs. 38,201/- inclusive of VAT vide invoice no. RI-45051. The subject mobile came with a warranty of one year. At the time of its purchase, complainant was introduced by OP2 to an insurance scheme “Daily Ultimate Protection & Daily Khelo 2999” plan of Rs. 2,999/- launched by OP1 for insuring / protection of mobile phone from theft, physical damage or any technical defect or mishap to the phone for a period of two years on payment of Rs. 2,999/-. On suggestion of OP2, complainant got the subject handset insured by paying Rs. 2,999/- to OP2 vide retail invoice no. RI45052 dated 24.06.2015 i.e. the same date as the date of purchase of the handset. The complainant met with an accident on 28.01.2016 due to which the subject handset got physically damage in terms of back cover and front screen though it was in working condition still. The complainant asked OP2 to get the subject mobile phone repaired under aforementioned insurance scheme as purchased from it by complainant and on 03.02.2016, an executive of OP1 visited complainant’s premises and collected the subject handset for repair and issued a jobs sheet number AD-D-010216-2952928 and invoice no. 5137 and also charged Rs. 500/- vide Advance slip no. 3757 dated 03.02.2016 as refundable cost for repair which would be given back to the complainant at the time of delivery of the mobile phone after repair. The said executive assured the complainant while collecting mobile phone it would be repaired within a week’s time but was delayed and was promised to be delivered on 14.02.2016 but on 16.02.2016, when the complainant called up OP1 to get back his phone, OP1 informed the complainant that the subject mobile could  not be repaired to due to non-availability of part from OP3 and assured the complainant that the subject mobile phone would be delivered to the complainant on 20.02.2016 when on several follows up by complainant, complainant was told by OP1 that the mobile phone would be repaired on chargeable fees of Rs. 29,000/- which shocked the complainant since the phone was fully covered under the insurance scheme sold by OP2 and therefore raised objection to such charges but OP1 flatly refused to repair the same without repair cost of Rs. 29,000/-. The complainant therefore feeling aggrieved with such acts of Ops which caused him mental torture for non-repair of his mobile phone despite being covered under insurance scheme for which he had paid Rs. 2,999/- to OP2 but denied free of cost repair, was constrained to file the present complaint alleging deficiency in service and unfair trade practice on the part of OPs for neither replacing the broken mobile phone nor repairing it, praying for issuance of direction against OPs to refund cost of the mobile phone  and insurance plan amount totaling                       Rs. 41,200/- with interest @ 18% p.a. from date of purchase till realization alongwtih compensation of Rs. 1,00,000/- towards mental agony and harassment and Rs. 22,000/- towards cost of litigation.
2. Complainant has attached copy of retail invoices issued by OP2 towards purchase of mobile phone and insurance plan, copy of job sheets and advance slip dated 03.02.2016 issued by OP1 for repairs.
3. Notice was issued to the OPs on 15.07.2016. None appeared on behalf of OP2 despite service effected on 25.07.2016 and was therefore proceeded against ex-parte vide order dated 19.09.2016. On fresh address of OP1 provided by the complainant in hearing held on 04.10.2016, notice was issued to OP1 and was served on 28.11.2016. However, none appeared on its behalf. OP3 entered appearance on 19.08.2016 and filed its written statement on 19.09.2016 while admitting the factum of complainant having purchased the Sony Xperia Z3/D6653 mobile phone from OP2, took the preliminary objection of provided limited warranty of one year on the subject mobile phone valid from date of purchase and liability lying strictly in accordance with the terms and conditions of warranty provided by it and therefore cannot be held liable for claims falling outside the scope of warranty. OP3 laid emphasis on the limited warranty clause which stipulated that “subject to condition of limited warranty, Sony warrants this product to be free from defects in design, material and workmanship at the time of its original purchase by a consumer. This Limited Warranty will last for a period of One(1) year as from the original date of purchase of product. If, during the warrant period, this product fails to operate under normal use and service, due to defects in design, material or workmanship, Sony Authorized distributor or service partner in the country / reason where you purchase the Product, will, at their option, either repair, replace or refund the purchase price of the Product in accordance with the terms and conditions stipulated herein”. The limited warranty clause excluded any failure of the product that is due to:
   • Normal wear and tear
   • Use in environment where relevant IP rating limitations, if applicable are exceeded (including liquid damage or detection of liquid inside the device resulting from such use)
   • Misuse or failure to use in accordance with Sony instructions for used and maintenance of the Product.

Nor does this warranty cover any failure of the Product due to accident, software or hardware modification or adjustment, or acts of god.

4. OP3 took the defence that complainant has admitted two physical damages caused to the handset due to an accident and therefore it is a prima facie case of insurance company i.e. OP1 and complainant’s own admission in this regard of physical damage is sufficient enough to establish that OP3 has not liability towards the complainant since the damage was caused due to external factor (accident) and no inherent manufacturing defects has been alleged by the complainant and therefore OP3 urged that it is not liable to repair the handset free of cost and only possible solution it can render in this scenario is to repair the subject mobile phone on chargeable basis and since OP1 (insurer) has refused to give any claim to the complainant, OP3 can only repair it subject to OP1 approving the estimated cost of repair. OP3 therefore urged that the dispute was between complainant and OP1 and OP2 and OP3 has no role to play since the matter pertains to claim approval by insurance company i.e. OP1 and even otherwise all allegations leveled by complainant are against OP1 and not OP3 which therefore since OP3 has been unnecessarily made a party to the present complaint, it prayed for deletion from the array of parties on grounds of no cause of action having arisen in favour of complainant against OP3. Therefore OP3 prayed for dismissal of the complaint qua itself.
5. OP3 has attached internet version of the terms and the conditions accompanying purchase of the mobile phone laying emphasis limited warranty terms and conditions and exclusion clause no 3.
6. Rejoinder and evidence by way of affidavit was filed by the complainant in reassertion of his grievance against OPs. OP3 was directed to file its evidence by way of affidavit vide order dated 17.03.2017 however failed to file the same till hearing held on 08.08.2017 for which last and final opportunity was granted to OP3 to file evidence vide order dated 28.08.2017 subject to imposition of cost of Rs. 500/- payable to complainant. But OP3 filed its evidence on 22.08.2017 without paying the mandatory cost to the complainant for which it was made clear in hearing held on 24.10.2017 that its evidence filed shall be accepted on record only after payment of cost. However, for non-compliance of the above said order, this Forum vide order dated 31.01.2018 directed that the evidence filed by OP3 be struck off from the records of this Forum. In fact OP3 stopped appearing after August 2017 till the conclusion of the case and was therefore proceeded against ex-parte vide order dated 31.01.2018.
7. Written arguments were filed by the complainant to reemphasize his grievance and relief prayed for against OPs.
8. We have heard the arguments addressed by the complainant and counsel for OP3 via video conferencing and have given our thoughtful consideration to the documentary evidence placed on record. The factum of purchase of mobile as well as the insurance protection plan has not be disputed as also its period of validity of warranty which was for one year from the date of purchase effective from 24.06.2015. The dispute arose when the subject mobile phone got physically damaged due to accident after seven months of its purchase though complainant has not alleged any manufacturing defect therein. The mobile was collected by OP1 executive on 03.02.2016 from the complainant vide job sheet and advance slip. From the retail invoices issued by OP2, it is evident that OP2 was the beneficiary / recipient of the cost of the mobile phone as well as the amount paid for mobile insurance plan. The issue now emerges as to who is responsible for the settlement of the insurance claim. The limited warranty and terms and conditions of the exclusion clause filed by OP3 which binds both parties i.e. the manufacturer as well as the purchaser clearly stipulated that the warranty would stand void in the event of any physical damage to the subject mobile phone, as is accident in the present case. It is also pertinent to mention here that the complainant has not alleged any manufacturing defect or malfunctioning of the subject mobile phone during the seven month period of its usage from June 2015 to January 2016 before the handset got damage due to accident. Therefore, OP3 cannot be held liable to repair the subject phone free of cost as is the settled law passed by Hon’ble National Commission in the judgment of Dina Nath Yadav Vs. Micronas Telecom Nokia Authorized Service Center III (2017) CPJ 61 (NC) which upheld the observation of UP SCDRC that in cases where warranty has expired or lapse, if the complainant wants to get his machine repaired, he is supposed to make payment for repair regardless of cost incurred thereon. In the present case, from perusal of retail invoices and job sheet issued by OP2 and OP1 respectively, it is crystal clear that the complainant had purchased that it was between OP1 (insurer) and OP2 (seller) to process the insurance claim towards cost of repair of physically damage handset which both OPs 1 & 2 had covered under insurance plan and had also pocketed the premium of     Rs. 2,999/- from to the complainant for the same and it was only after the process of the said claim could OP3 get the subject phone repaired from its authorized service center as the warranty on the same stood invalidated due to physical damage. Therefore there is not deficiency in service on part of OP3 but a clear case of deficiency in service on the part of OP1 & OP2 for having failed to discharge their obligation being seller and beneficiary of the receipt of the sale price as well as the premium for the insurance but did nothing towards process of damage claim to the complainant to enable him to get the subject phone repaired despite it being under insurance for a period of two years against any mishap, accident or theft, and instead demanding charges for repairs not to ignore the fact that none of them bothered to appear before this Forum despite service effected and put forth their defence. We therefore direct OP1 & OP2 jointly and severally to refund the cost of the subject mobile phone alongwith insurance premium totaling Rs. 41,200/- with interest @ 6% from the date of filing of the present complaint till realization to the complainant. We further direct OP1 & OP2 to pay compensation of  Rs. 10,000/- towards mental agony and harassment inclusive of litigation charges. Let the order be complied with by OP1 & OP2 within a period of 30 days from receipt of copy of this order. No order against OP3 is passed and it is absolved from any liability.
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 07.08.2020.

 

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member