Chandigarh

StateCommission

A/75/2015

Sony India Pvt. Ltd. - Complainant(s)

Versus

Gourav - Opp.Party(s)

Amit Arora, Adv.

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

First Appeal No.	:	75 of 2015
Date of Institution	:	27.03.2015
Date of Decision	:	01.04.2015

 

 

1. Sony India Pvt. Ltd., A Company incorporated under the Companies Act 1956, having its Registered Office at A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044, through its Authorized Signatory.

 

2. Babbar Mobile Store, Shukal Kand Chowk, Khanna Palace Road, Ambala, Haryana.

 

3. Modern AKM Electronics, SCO No.144-145, 1^st Floor, Sector 34-A, Chandigarh.

 

……Appellants/Opposite Parties

 

V e r s u s

 

Gaurav s/o Shri Amrit Lal, R/o House No.57, Sector 4, HUDA Naraingarh, Ambala.

 

 ....Respondent/complainant

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR.DEV RAJ, MEMBER.

 

Argued by:       Sh.Amit Arora, Advocate for the appellants.

                 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 11.02.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-

“In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are directed, jointly and severally, to:-

 

[a]  To repair the handset in question of the Complainant, free of charge, and make it fully functional, with extended warranty of six months.

[b]  To pay Rs.10,000/- on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c]   To pay Rs.7,000/- as costs of litigation;

The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable to refund the cost of the handset i.e. Rs.17,500/-, apart from paying compensation and costs of litigation as in sub-para [b] & [c] above.”

2.       The complainant purchased mobile handset make XPERIA-L, in the sum of Rs.17,500/-, on 06.07.2013, from Opposite Party No.1, vide bill No.4973 dated 06.07.2013, Annexure C-1. Though he encountered various defects like hanging, heating, camera hang, screen blank, signal drop etc. etc., after a few days of its purchase, yet Opposite Party No.2, the Service Centre of Opposite Parties No.1 and 3, failed to rectify the same, despite the fact that the same (mobile handset), was left with it, for a number of times. Last time on 16.06.2014, the complainant left the aforesaid defective mobile handset with Opposite Party No.2, for rectification of defects and he was told that the same be collected after 3-4 days. The complainant made numerous visits to the Service Centre of Opposite Party No.2, for collection of the mobile handset, but it was neither repaired nor returned to him. It was stated that when the Engineers of Opposite Party No.2, failed to rectify the defects, in the mobile handset, the complainant requested the Opposite Parties, to replace the defective handset with a new one, as the same was within the warranty period, but they flatly refused to do so.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to either replace the mobile handset, in question, with a new one of the same make and model, or to refund the price thereof; pay compensation, to the tune of Rs.20,000/-, for mental agony and physical harassment; cost of litigation, to the tune of Rs.10,000/- and interest of the aforesaid amounts, @12% P.A.
3.       The Opposite Parties, in their joint written version, admitted that the complainant purchased the mobile handset, make XPERIA-L, in the sum of Rs.17,500/-, on 06.07.2013, from Opposite Party No.1, vide bill No.4973 dated 06.07.2013, Annexure C-1. It was stated that, after a period of 10 months from the date of purchase of the mobile handset, the complainant, approached Opposite Party No.2, on 05.05.2014, complaining of microphone/loud-speaker/ volume too low problem in the same (mobile handset). It was further stated that the Service Engineers of Opposite Party No.2 promptly inspected the said mobile handset and found it to be affected by water ingression thereby leading to vitiation of the warranty terms and conditions. It was further stated that the complainant insisted upon replacement of the mobile handset. It was further stated that since the mobile handset was damaged due to external cause of water ingression, therefore, the question of replacement of the same, did not at all arise. It was further stated that the Service Engineers of Opposite Party No.2, duly informed the complainant, that since there was water ingression in the mobile handset, as such, it could not be replaced, but, on the other hand, could be repaired only, but he (complainant) refused to get the repairs done, and left the premises of Opposite Party No.2, alongwith the mobile handset. It was further stated that after a period of one month, the complainant again approached Opposite Party No.2, on 16.06.2014, complaining of various problems in the mobile handset. It was further stated that when the Service Engineers of Opposite Party No.2, again inspected the mobile handset, they found traces of minor liquid damage, in the same. It was further stated that the Service Engineers repaired the mobile handset by cleaning it and upgraded its software. After repairing the handset, the representatives of Opposite Party No.2, called up the complainant   to   come   and   collect   the handset, but he refused to do so. It was further stated that neither there was any   deficiency,   in   rendering   service,   on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4.       The Parties led evidence, in support of their case.
5.       After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 
6.       Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
7.       We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully. 
8.       The Counsel for the appellants, submitted that it was only after about ten months of purchase of the mobile handset, in question, that  the complainant made a complaint, to the effect that there was a problem in microphone/loud-speaker and the volume was too low. He further submitted that when the Service Engineer of the Opposite Parties inspected the said mobile handset, it was found that the defect occurred due to water logging i.e. liquid damage. He further submitted that since the defect, in the said mobile handset, occurred on account of external factors, i.e. liquid damage, the question of replacement of the same, though it was within the warranty period, did not at all arise, as per the terms and conditions of warranty. He further submitted that when the said mobile handset was brought by the complainant, to the Service Centre of Opposite Party No.2, its Engineers repaired the same, but he (complainant) instead of taking away the same, kept it with it (Opposite Party No.2). He further submitted that notice was given to the complainant that the mobile handset, in question, had been repaired and he could collect the same, but he failed to do so. He further submitted that, as such, neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice, but the District Forum was wrong, in awarding compensation and litigation cost, as also in the alternative directing to refund the cost of the mobile handset, in case the order was not complied with, within 30 days, from the date of receipt thereof. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants/Opposite Parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Undisputedly, the mobile handset, in question, was purchased by the complainant, from Opposite Party No.1, for a sum of Rs.17,500/-, vide bill Annexure C-1 dated 06.07.2013. Annexure C-2 is the job sheet dated 16.06.2014. It is evident, from this document that earlier to 16.06.2014, the mobile handset was also taken to Opposite Party No.2, on 05.05.2014 and the problem therein was attended. It is further evident, from Annexure C-2, that under the heading “condition of set” it was recorded “scratched, deep scratches, dusty”. Under the heading “Customer Complaint” it was recorded as “hanging, heating, others, camera hang, while calling phone hang, screen blank, signal drop, hearing problem”. Under the heading “ASC Comments” it was recorded as camera hang, while calling phone hang, screen blank, signal drop, heating problem”. So, when the mobile handset was taken to the Opposite Parties, and job sheet Annexure C-2 dated 16.06.2014 was generated, it was still within the warranty period. No doubt, the complainant asked for replacement of the mobile handset, yet that did not mean that the same was not suffering from the aforesaid defects. The mobile handset, as is evident, from Annexure C-2 was handed over on 16.06.2014, which according to the complainant, as is evident, from the averments contained in the complaint, duly supported by his affidavit, by way of evidence, was not repaired till 05.07.2014. It was the definite case of the complainant that he visited Opposite Party No.2, time and again on 26.06.2014, 26.06.2014 and 05.07.2014 to take back the mobile handset, which was handed over to it, on 16.06.2014, but it was not returned to him. This averment made by the complainant, in the complainant, was duly supported by his affidavit, by way of evidence. No cogent and convincing rebuttal evidence, whatsoever, was produced by the Opposite Parties, to the effect, that any effort was made by them to repair the mobile handset, in question, and intimation was given to the complainant, to collect the same. Under these circumstances, by not repairing the defects, in the mobile handset, in question, within the reasonable period, though still it was under warranty period, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. The District Forum was also right, in holding so.
10.       The next question, that falls for consideration, is, as to whether, there was any manufacturing defect, in the mobile handset or not, so as to warrant the replacement thereof, as demanded by the complainant. It may be stated here, that it was for the complainant to prove by producing the expert evidence that the said mobile handset purchased by him, from Opposite Party No.1, was actually suffering from any inherent manufacturing defect, and it (mobile handset) could not be repaired. No expert evidence was produced by the complainant, in this regard. The mere fact that there were certain defects, in the said mobile handset, which have been stated above, did not mean that it was suffering from inherent manufacturing defects, and was beyond repairs, and, as such, required replacement or refund of the price thereof. In the absence of any cogent and convincing expert evidence, having been produced by the complainant, to prove the inherent manufacturing defects, in the said mobile handset, replacement thereof straightway could not be ordered. The District Forum was, thus, right in directing that the mobile handset be repaired, by the Opposite Parties, free-of-charge, by making it fully functional and the extended warranty be given. It was only if the ordered impugned was not complied by the Opposite Parties, within 30 days, from the date of receipt of a copy thereof (order impugned), that it was directed that refund of the price of the mobile handset be made. The findings of the District Forum, in this regard, being correct, are affirmed.
11.       The next question, that falls for consideration, is, as to whether, any intimation was given to the complainant, by the Opposite Parties, through notice that the mobile handset was repaired and made fully functional and the same be collected. It was for the Opposite Parties to produce the documentary evidence, in that regard, in the District Forum, but they failed to do so, though they had been given sufficient opportunity, in that regard. No doubt, alongwith the memorandum of appeal, certain documents have been placed, on the record, showing that an intimation, as far back as on 25.08.2014 was given to the complainant, for collecting the said mobile handset. However, the documents placed, on record, alongwith the memorandum of appeal, at this stage, could not be taken into consideration, as that would amount to reopening of the case. Under these circumstances, the documents placed alongwith the memorandum of appeal are ruled out of consideration, to prove that any intimation was given to the complainant, for collection of the said mobile handset, as the same had allegedly been repaired.
12.       The next question, that falls for consideration, is, as to whether, compensation as also the litigation cost awarded by the District Forum, is excessive or reasonable. It may be stated here, that the complainant purchased the mobile handset, with a view to properly use the same, so as to have communication with his relatives and friends, at his convenience. When the mobile handset became defective and handed over to Opposite Party No.2 on 16.06.2014, for repairs, by not returning the same till the date of filing the complaint, a tremendous mental agony and physical harassment was caused to the complainant. Not only this, in the absence of mobile handset, it was not possible for the complainant, to have free communication with his relatives, friends and other people. Compensation is required to be granted, keeping in view various factors. In our considered opinion, the District Forum was right, in granting compensation, in the sum of Rs.10,000/- and cost of litigation, to the tune of Rs.7,000/-, keeping in view the mental agony and physical harassment and injustice caused to the complainant. Therefore, the compensation and litigation costs awarded by the District Forum could not be, in any manner, said to be excessive. On the other hand, it could be said to be fair and reasonable.
13.       No other point, was urged, by the Counsel for the appellants.
14.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
15.       For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no  order as to costs. The order of the District Forum is upheld.
16.       Certified copies of this order, be sent to the parties, free of charge.
17.       The file be consigned to Record Room, after completion

Pronounced.

01.04.2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Rg

 

 

 

 

STATE COMMISSION

(First Appeal No. 75 of 2015)

 

Argued by: Sh.Amit Arora, Advocate for the applicants/ appellants.       

 

Dated the  1^st  day of April 2015

 

ORDER

 

              Alongwith the appeal, an application for placing on record, copy of the emails Annexure AR-1 (colly.) exchanged between the parties and letter dated 25.08.2014, Annexure AR-2, sent to the complainant, for collection of the mobile handset, in question, by way of additional evidence, was moved by the appellants, on the ground, that the same are essential for the just decision of appeal.

2.       Arguments on the said application have been heard.
3.       It may be stated here, that the documents Annexures AR-1 and AR-2, sought to be placed, on record, by way of additional evidence, could have very well been produced before the District Forum, by the Opposite Parties/appellants, when they were leading evidence, in the Consumer Complaint. No plausible reason has been assigned, as to what prevented the appellants/Opposite Parties, from producing these documents, on record, in the District Forum. In case, at this stage, the application for placing, on record, the documents Annexures AR-1 and AR-2 are allowed, that will delay the disposal of appeal, thereby defeating the very purpose of the provisions of Section 13 (3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing on record the documents Annexures AR-1 and AR-2,  by way of additional evidence, at this stage. The application is accordingly dismissed.
4.       Arguments, in the main appeal, already heard
5.       Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum has been upheld.
6.       Certified copies of this order, as also of the main order be sent to the parties, free of charge.

 

          Sd/-                               Sd/-

(DEV RAJ) MEMBER

(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

Rg