Punjab

Faridkot

CC/16/58

Patel Singh - Complainant(s)

Versus

Friends Communication - Opp.Party(s)

Sarbjit Singh Brar

15 Nov 2016

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :        58         

Date of Institution :   24.02.2016

Date of Decision :     15.11.2016

 

Patel Singh aged about 31 years, s/o Sh Shinder Singh, r/o Village Dhab Guru Ki, District Faridkot 151204.                                                                    

.....Complainant

Versus

1. Friends Communication, K-2 Market, Near Airtel Showroom, Opposite Kotwali, Faridkot through its Proprietor Mr Satish Vij.

2. Sony India, Registered Office, North New Delhi, A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044 through its Director.

3. Syska Gadget Secure, 4^th Floor, Sapphire Plaza, Plot No. 80, S.No. 232, New Airport Road, Near Symbiosis College, Sakore Nagar, Viman Nagar, Pune Maharashtra-411014, through its Managing Director.

4. Kristal Enterprises, 1^st Floor Adjoining Bank of India, Shaheed Udham Singh Chowk, Ferozepur City, through its Managing Director.

..........OPs

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

 

Quorum: Sh. Ajit Aggarwal, President,

               Sh Purshotam Singla, Member.

 

Present: Sh S S Brar, Ld Counsel for Complainant,

              Sh A K Monga, Ld Counsel for OP-1,

              Sh Attinder Pal Singh, Ld Counsel for OP-2 and 4

              OP-3 Exparte.

(Ajit Aggarwal, President)

                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to replace the defective Sony Xperia Z (Ultra White) mobile with new one and for further directing OPs to pay Rs. 85,000/-as compensation for harassment and mental tension suffered by complainant alongwith Rs.5500/- as litigation expenses.

   2                                Briefly stated, the case of the complainant is that complainant purchased one Sony Xperia Z (Ultra White) model no. C 6802 on 15.03.2015 for Rs.19,000/-from OP-1 against proper bill and OP-1 being representative of OP-3 covered the said phone against damage, theft etc and assured complainant that OP-1 would provide all services in future as per plan for which it charged Rs.1500/-in cash vide barcode no.78642981. It is contended that OP-1 deliberately replaced the phone in question with the used black mobile set and charged amount of Rs.7,900/-on false pretext while misrepresenting the complainant. On 11.09.2015 on request of complainant, OP-1 registered the device in question under guarantee and warranty through OP-4 and OP-4 committed negligence in service deliberately in connivance with OP-1 and gave old used mobile to complainant, which is not working properly due to technical faults. On 7.01.2016, complainant again made request to OP-1 to replace the said phone and OP-1 on receiving the same, charged Rs.7900/-as for estimate handling charges from him under cctv camera, but OP-1 returned the used device with same IMEI number with numerous faults and said device is not working at all and indulged in unfair trade practice. Thus, OP-1 and 4 in connivance with each other committed misrepresentation, negligence and charged huge estimate amount from complainant on false pretext and when complainant requested OPs for replacing the said phone and to return the amount charged from him, OP-1 started threatening him and also abused him in the presence of other respectable persons of the society. This act of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused great inconvenience, harassment and mental agony to complainant. Complainant has prayed for directing OPs to provide new handset of same model to him and to pay compensation of Rs.85,000/- for harassment and mental agony suffered by him besides Rs.5500/- as litigation expenses. Hence, the present complaint.

3                            Ld counsel for complainant was heard with regard to admission of the complaint and vide order dated 29.02.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                                        On receipt of notice, OP-1 filed reply taking preliminary objections that there is no deficiency in service on the part of answering OP-1 and therefore, complaint in hand is not maintainable and is liable to be dismissed. However on merits, Op-1 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that mobile phone in question was sold to complainant by OP-1 on 15.03.2015 vide bill no. 5576 and as per terms printed on the bill, the warranty if any, and the service required if any, was to be provided by OP-3, which is the authorized Service Centre of OP-2, who is the manufacturer and supplier of said mobile handsets. It is totally denied if complainant has ever paid any amount of Rs.7900/-to OP-1. It is also denied that complainant approached him with any complaint in his phone as complainant never came to OP-1 and OP-1 has never received any amount of Rs.7,900/-from complainant. It is reiterated that there is no deficiency in service on the part of answering OP and prayer for dismissal of complaint with costs is made.

 5                               OP-2 and 4 also filed reply taking preliminary objections that complainant purchased the said mobile from OP-1 after detailed demonstration of features, functions alongwith detailed explanation about its warranty terms and conditions. OP-2 provides limited warranty for one year from the date of purchase and it strictly lies in accordance with terms and conditions and OPs are not liable for claims falling outside the scope of warranty and this warranty does not cover any failure of product due to normal wear and tear, misuse, failure of product due to accident, modification or adjustments, acts of God or damage resulting from liquid. It is averred that after enjoying the mobile for six months, complainant approached OP-4 on 11.09.2015 raising the issue that “Phone cannot power on”. On immediate inspection, it was found that said phone was brought in damaged condition and its display and back was broken. It is further averred that warranty for said mobile stands void as it was brought in a damaged condition, which might be due to negligence in handling the same by complainant. As an appropriate solution, OPs offered a refurbished handset at 50% value, which complainant refused to accept. It is further averred that complainant approached OPs only once with his physically damaged  phone and even he did not agree to solution offered by Ops and therefore, OPs are not liable for any claim as sought by complainant due to his own negligence. It is further averred that they have no idea regarding amount of Rs.7900/- paid by complainant to OP-1 and they also do not know anything about what conversation took place between them. There is no expert evidence produced by complainant to prove that there is any manufacturing defect in said phone. Complainant has levelled false allegations against them for obtaining wrongful gains. However, on merits, he has denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on the part of OP-2. It is reiterated that complainant approached answering OP only  once regarding complaint in his handset and he was not denied any service to him. He has asserted that complainant has filed this complaint only to harass the answering OP and to obtain undue advantage from them. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering opposite parties.  

6                                       Notice containing copy of complaint alongwith relevant documents was sent to OP-3, but did not receive back. Case is called out for several times, but nobody appeared on behalf of OP-3 on date fixed either in person or through counsel. Therefore, after long waiting till 4.00 pm, OP-3 was proceeded against exparte vide order dated 27.05.2016.

7                                        Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence affidavit of complainant as Ex C-1 and documents Ex C-2 to C-5 and then, closed the evidence.

8                                               In order to rebut the evidence of the complainant, Counsel for OP-1 tendered in evidence affidavit of Satish Kumar, Proprietor as Ex OP-1/A and then, closed the same. Ld Counsel for OP-2 and 4 also tendered in evidence affidavit of Priyank Chauhan as Ex OP-2 to 4/1 and documents Ex OP-2 to 4/2 to 5 and then, also closed the same.

9                                                                 We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

10                                        Ld Counsel for complainant vehementally argued that complainant purchased one Sony Xperia Z (Ultra White) model no. C 6802 on 15.03.2015 for Rs.19,000/-from OP-1 against proper bill and OP-1 being representative of OP-3 covered the said phone against damage, theft etc and assured complainant that OP-1 would provide all services in future as per plan for which it charged Rs.1500/-in cash vide barcode no.78642981. It is contended that OP-1 deliberately replaced the phone in question with the used black mobile set and charged amount of Rs.7,900/-on false pretext while misrepresenting the complainant. On 11.09.2015 on request of complainant, OP-1 registered the device in question under guarantee and warranty through OP-4 and OP-4 committed negligence in service deliberately in connivance with OP-1 and gave old used mobile to complainant, which is not working properly due to technical faults. On 7.01.2016, complainant again made request to OP-1 to replace the said phone and OP-1 on receiving the same, charged Rs.7900/-as for estimate handling charges from him under cctv camera, but OP-1 returned the used device with black colour mobile set contrary to original while coloured mobile set with same IMEI number with numerous faults and said device is not working at all and indulged in unfair trade practice. Thus, OP-1 and 4 in connivance with each other committed misrepresentation, negligence and charged huge estimate amount from complainant on false pretext and when complainant requested OPs for replacing the said phone and to return the amount charged from him, OP-1 started threatening him and also abused him in the presence of other respectable persons of the society. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused great inconvenience, harassment and mental agony to complainant. Complainant has prayed for accepting the present complaint alongwith compensation and litigation expenses.

11                         To controvert the allegations of complainant, ld counsel for OP-1 argued that there is no deficiency in service on the part of answering OP-1 and therefore, complaint in hand is not maintainable and is liable to be dismissed. It is asserted that mobile phone in question was sold to complainant by OP-1 on 15.03.2015 vide bill no. 5576 and as per terms printed on the bill, the warranty if any, and the service required if any, was to be provided by OP-4, which is the authorized Service Centre of OP-2, who is the manufacturer and supplier of said mobile handsets. It is totally denied if complainant has ever paid any amount of Rs.7900/-to OP-1. It is also denied that complainant approached him with any complaint in his phone as complainant never came to OP-1 and OP-1 has never received any amount of Rs.7,900/-from complainant. It is reiterated that there is no deficiency in service on the part of answering OP and prayer for dismissal of complaint with costs is made.

12                             Ld Counsel for OP-2 and 4 also argued that complainant purchased the said mobile from OP-1 after detailed demonstration of features, considering its functions alongwith detailed explanation about its warranty terms and conditions. OP-2 provides limited warranty for one year from the date of purchase and it strictly lies in accordance with terms and conditions and OPs are not liable for claims falling outside the scope of warranty and this warranty does not cover any failure of product due to normal wear and tear, misuse, failure of product due to accident, modification or adjustments, acts of God or damage resulting from liquid. It is further averred that after enjoying the mobile for six months, complainant approached OP-4 on 11.09.2015 raising the issue that “Phone cannot power on”. On immediate inspection, it was found that said phone was brought in damaged condition and its display and back was broken. It is further averred that warranty for said mobile stands void as it was brought in a damaged condition, which might be due to negligence in handling the same by complainant. As an appropriate solution, OPs offered a refurbished handset at 50% value, which complainant refused to accept. It is further averred that complainant approached OPs only once with his physically damaged  phone and even he did not agree to solution offered by Ops and therefore, OPs are not liable for any claim as sought by complainant due to his own negligence. It is further averred that they have no idea regarding amount of Rs.7900/- paid by complainant to OP-1 and they also do not know anything about what conversation took place between them. There is no expert evidence produced by complainant to prove that there is any manufacturing defect in said phone. Complainant has levelled false allegations against them for obtaining wrongful gains. It is reiterated that there is no deficiency in service on the part of OPs and prayed for dismissal of complaint with costs.

13                                The case of the complainant is that he purchased a mobile phone worth Rs.19,000/-from OP-1 against a proper bill and got insured the same through OP-3 against damage, theft etc by paying Rs.1500/-in cash vide barcode no.78642981, but OP-1 deliberately replaced the mobile of complainant with used black mobile set and charged amount of Rs.7900/-on false pretext and registered the said phone with OP-4 as per estimate ticket ID dt 11.09.2015. it is contended that OP-4 in connivance with OP-1 gave old used mobile to complainant against their estimate dated 11.09.2015, which is not working properly due to some technical faults. Complainant made many requests to OPs to replace the said mobile, they did not do so.  Complainant again approached OPs on 7.01.2016 with request to replace the said device, but all in vain.  OP-1 returned the used device with same IMEI Number  as mentioned in bill i.e black colour mobile set contrary to the original white colour device  and this one is not working properly.  On the other hand, OP-1 has denied all the allegations and asserted that he never charged any amount of Rs.7900/-from complainant and totally refuted that complainant ever approached him. It is further averred by OP-1 that complainant never approached him. Op-2 to 4 has also denied all the allegations of complainant and asserted that complainant used the said phone for continuous 6 months and he approached them on 11.09.2015 with issue of “phone can not power on”. On immediate checking, OP-4 found that said phone was brought in physically damaged condition and display and back of phone was broken. Moreover, offer of OPs to provide the complaint a refurbished handset at 50% value, was also refused by complainant.  As per OPs there is mishandling or negligence on the part of complainant and they are not liable to give any relief as sought by complainant.

14                                       It is admitted case of the parties that complainant purchased mobile handset from OP-1 on 15.03.2015, which was manufactured by OP-2 and there was one year warranty for any defect in the said mobile handset. It is further admitted by OP-2 and 4 that on 11.09.2015, complainant approached them with complaint of some defect in the said mobile set. On it, counsel for OP-2 and 4 argued that there was physical damage to the said mobile phone and it was not covered under the warranty so, it cannot be repaired under warranty conditions and can be repaired on chargeable basis. To prove their case, OP-2 and 4 produced service job sheet dated 11.09.2015 as Ex OP-2 and 4/5 with comments on customer complaint : No Power, Display or Back Broken and in the column Warranty Category, it is written as Out Warranty and Condition of Set: Damaged. Admittedly, there was one year warranty on the mobile phone in question, which was to be expired on 14.03.2016. The complainant approached OPs on 11.09.2015 within warranty  period of one year, so mobile phone was under warranty. Plea of the OPs is that the mobile set was in damaged condition, but they failed to prove that. The problem in phone is only due to physical damage to mobile handset. Moreover, within warranty period they are bound to repair the mobile handset free of cost and they can not deny their liability to repair the said mobile handset within warranty period.

15                        From the above discussion, we are of considered opinion that OP-2 and 4 are liable to repair the mobile handset of complainant free of cost under warranty conditions.  Hence, present complaint in hand is hereby allowed against OP-2 and 4. OP-1 is only a retailer and is mere a shopkeeper and is not the maker of mobile phone in question  and warranty, if any, is to be given by manufacturing company through their authorized Service Centres. So, OP-1 is not liable for any defect. OP-3 cannot be held responsible for this, as OP-3 has to work as per instructions of Company and there seems to be no fault on the part of OP-3. Therefore, complainant against OP-1 and 3 hereby stands dismissed. OP-2 and 4 are directed to repair the mobile handset of complainant upto his satisfaction free of cost. OP-2 and 4 are further directed to pay Rs.2000/-as compensation for harassment and mental agony suffered by him. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to record room.

Announced in open Forum

Dated:15.11.2016

Member                President                                          (P Singla)            (Ajit Aggarwal)