Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 485.
Instituted on : 20.10.2015.
Decided on : 06.06.2016.
Kunal Juneja Advocate son of Shri Vijay Kumar Juneja resident of House no.1065, Inside Delhi Gate, Rohtak.
………..Complainant.
Vs.
- M/s Dashmesh Khalsa Mobile, Gohana Road Rohtak, Near Malik Dawai Wala, Gohana Adda, Rohtak through its Prop./Managing partner/Manager.
- Sai Security Systems, Authorized Sony Mobile Service Centre, Near Malabar Guest House, Rohtak through its Authorized person/Proprietor.
- Sony India Communications(India) Private Limited, 2nd Floor, A-31, Mohan Co-operative Industrial Estate Mathura Road, New Delhi-110044, Through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Complainant in person.
Sh. Gulshan Chawla Advocate for opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a Sony Xperia mobile phone for a sum of Rs.17000/- from the opposite party no.1 who is authorized dealer of opposite party no.3 whereas opposite party no.2 is the authorized mobile service centre and opposite party no.3 is the manufacturer of the Sony Mobile Phone. It is averred that from the day of its purchase, the said mobile phone is creating problem in charging, auto off, hanging and battery backup. It is averred that complainant approached the opposite party no.1 in September 2013 who asked the complainant to approach opposite party no.2 and the complainant contacted opposite party no.2 and asked to rectify the alleged defects who said that this set used to have the same problems and with the passage of time the problem will be automatically cured. It is averred that again in the first week of April 2014, the same problem start creating and the complainant deposited the mobile set with the opposite party no.2 who conveyed that the mobile phone is having manufacturing defect and hence the same cannot be rectified. It is averred that again in the month of September 2015 the same problems appeared and the officials of opposite party No.2 assured to replace the above said mobile but lateron refused to replace the mobile phone. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to replace the defective mobile set with a new one and to pay Rs.50000/- as compensation for harassment, mental agony alongwith interest to the complainant.
2. Notice of the present complaint was sent to the opposite parties who appeared and filed their written reply submitting therein that it is denied that complainant deposited any handset with the opposite parties. No record of the same lies with the opposite parties as no job sheet has been enclosed. No assurance was ever made by the answering opposite parties. It is averred that sole discretion of replacing the phone is only with the opposite party No.3 as per terms of warranty. It is averred that there is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Complainant in his evidence has tendered affidavits Ex.CW1/A, Ex.CW2/A, Ex.CW3/A and documents Ex.C1 and has closed his evidence. On the other hand, ld. counsel for the opposite parties tendered affidavit Ex.RW1/A, and documents Ex.R1 to ExR2 and has closed his evidence
5. We have heard ld. Counsel for the parties and have gone through the material aspects of the case very carefully.
6. There is no rebuttal to the evidence that as per bill Ex.C1 the complainant had purchased the mobile set on 13.07.2013 for a sum of Rs.17000/- of Sony Xperia Company. It is also not disputed that as per affidavits Ex.CW2/A and affidavit Ex.CW3/A of Mohit, Mobile Expert/Technician of Nokia Care, he had checked the mobile in question and had found that there was problem in charging, battery backup and hanging problem. The mobile phone is having latent manufacturing defect and the same cannot be repaired or rectified. The contention of complainant is that the handset in question was not replaced by the opposite parties despite having manufacturing defect in it and the defects appeared during warranty period. Hence the complainant is entitled for the refund of price alongwith compensation from the opposite parties. On the other hand, contention of ld. counsel for the opposite parties is that the complainant has never approached the opposite party and has not placed on record any job sheet to prove his case. Hence he is not entitled to any claim.
7. After going through the file and hearing the parties it is observed that as per affidavit Ex.CW3/A of Expert/Technician the mobile phone is having latent manufacturing defect and on the other hand, opposite parties have not placed on record any evidence to rebut the same. It is also observed that the defects appeared during the warranty period and the same cannot be repaired or rectified by the opposite parties. Regarding the defect occurred in the mobile set within warranty period, we have placed reliance upon the law cited in 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others whereby Hon’ble Delhi State Commission has held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that it is a fit case where the refund of price is justified. The set in question is in the possession of complainant.
8. In view of the facts and circumstances of the case, it is observed that the manufacturer is liable to refund the price of mobile set. As such it is directed opposite party No.3 i.e. manufacturer shall refund the price of mobile set i.e Rs.17000/-(Rupees seventeen thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 20.10.2015 till its realization and shall also pay a sum of Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of order. However complainant is directed to hand over the mobile in question with accessories(if any) to the opposite parties. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
06.06.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
