Punjab

Ludhiana

CC/16/134

Harsharan Kaur - Complainant(s)

Versus

Malhotra Radio & Watch Co. - Opp.Party(s)

Varun Verma Adv.

28 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA

 

Consumer Complaint No.134 of 17.02.2016

Date of Decision        :   28.11.2016

 

Harsharan Kaur Binder, Advocate wife of Sh.Bikrampal Binder, Advocate, resident of H.No.1759/44, Hira Bagh, Gali No.10-B, Jagraon, District Ludhiana.

….. Complainant

Versus 

 

1.Malhotra Radio & Watch Co., Railway Road, Jagraon, District Ludhiana through its Proprietor/Authorized signatory.

2.Aroma Instant Service, SCO 39-G, LGF, B.R.S.Nagar, Opp. Police Station Sarabha Nagar, Ludhiana, through its Manager.

3.Sony India Pvt. Ltd., A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi through its Director/Authorized signatory.

 

..…Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                     :         Sh.Varun Verma, Advocate

For OPs                         :         Sh.Jagdeep Pal Singh, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant purchased mobile Sony D2302 Xperia M2 white dual sim vide invoice No.9325 dated 10.2.2015 for Rs.14,300/- from OP1. As there was manufacturing defect in the mobile and as such, complainant handed over the mobile to OP1 on 7.1.2016 for removing the defects. However, OP1 neither sent the mobile to the concerned company for removing the defects nor removed the same in the prescribed warranty period, but returned the mobile    to the complainant on 25.1.2016, despite the fact that the said mobile is under warranty. OP1 did not supply the job slip to the complainant, who is an Advocate by profession. Complainant suffered in his profession, due to fault in the mobile because she could not contact the clients. Legal notice dated 3.2.2016 was served on OP1 and mobile for repair was handed over to OP2 on 3.2.2016 against job slip No.W116020301310, but it was returned on 4.2.2016 with the remarks “JACK LOCALLY CHANGED WARRANTY VOID PICS ATTACHED”. Demand of Rs.7000/- for repair charges put forth from the complainant for changing the mother board of the mobile. By pleading deficiency in service on the part of Ops, prayer made for either to replace the mobile set with new one or to refund the price of the mobile set with interest @12% per annum from the date of purchase till actual payment. Compensation for mental harassment and agony of Rs.50,000/-, but litigation expenses of Rs.22,000/- more claimed.

2.                In written statement submitted to complaint by Ops jointly, it is pleaded interalia as if OP3 is a company incorporated under the Companies Act; OP2 is the authorized service centre and OP1 is the authorized dealer; limited warranty of one year was provided from the date of purchase, but complainant after enjoying the handset for 11 months and 25 days, approached OP2 on 3.2.2016 for disclosing as if power of the phone cannot be on. Op2 without delay attended the complainant and inspected the handset. Upon inspection, it was observed that the handset was locally tampered because Jack was locally repaired. So, complainant procured the services of some unauthorized agency/third party. Moreover, the condition of the handset was not good. Warranty term has become void in view of locally tampering of the handset. Complainant purchased the mobile set in question after detailed demonstration of the features, functions and applications along with detailed explanation of all the warranty terms and conditions of the mobile. Complainant approached Ops just 6 days prior to the expiry of warranty period and that shows the intention of the complainant. Had there been any inherent defect in the mobile set, then complainant would have surely contacted Ops since from the purchase of the mobile set. So, allegation of manufacturing defect denied. Complaint has been filed on baseless allegations by mis-representing the facts with sole aim of getting wrongful gain. There is no deficiency in service on the part of Ops because on presentation of the mobile, timely action was taken for diagnosing the problem in the mobile set. It is claimed that the complainant has no cause of action and complaint being filed for harassing the Ops, deserves dismissal.

3.                Even separate written reply by OP1 is filed for pleading interalia as if complaint is not maintainable; complainant has not approached this Forum with clean hands; complainant is not a consumer as defined under the Consumer Protection Act and complainant has no cause of action because there is no deficiency in service on the part of OP1. It is claimed that Op1 deals in business of sale of mobile phones and the complainant purchased the mobile phone in question on 10.2.2015 vide invoice No.9325 for an amount of Rs.14,300/-. Admittedly, the complainant visited the shop of OP1 in January, 2016 with the complaint that there was a defect in the mobile phone and the same was not working properly and in response of which, OP1 suggested the complainant to get the mobile phone checked and repaired from the authorized Sony Service Centre because phone of the complainant was within warranty. Op1 further disclosed that he is a dealer and is not having the service centre and thereafter, the complainant went back from the shop of OP1 along with her mobile phone. Each and every other allegation of complaint denied.

4.                Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C5 and thereafter, her counsel closed the evidence.

5.                On the other hand, counsel for the OPs tendered in evidence affidavit Ex.RA of Sh.Priyank Chauhan along with documents Ex.R1 to Ex.R5, Ex.R5/A and Ex.R5/B and thereafter, closed the evidence.

6.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

7.                Undisputedly, the mobile set in question purchased by the complainant from OP1 on 10.2.2015 for consideration of Rs.14,300/- through invoice Ex.C1=Ex.R3. However, defect in the mobile set in question erupted for the first time on 7.1.2016 as per allegations of complainant in her complaint and contents of affidavit Ex.CA, due to which, she approached OP1 qua which OP1 admitted in written reply. Had there been any manufacturing defect in the mobile set in question, then certainly it would have not functioned for such a long time of 10 months and 25 days i.e. from the date of purchase i.e.10.2.2015 till 07.01.2016. Manufacturing defect is an inherent inbuilt defect in the mobile/product. Had such inherent inbuilt defect been there, then certainly mobile would not have worked smoothly for 10 months and 25 days prior         to its being taken to OP1 on 7.1.2016. However, it continued to work for such long time and as such, submissions advanced by Sh.Jagdeep Pal Singh, Advocate has force that allegations of manufacturing defect are false and that is why report of expert not produced for proving the manufacturing defect and nor the mobile set presented in this Forum for getting the same checked from the expert. Submission of counsel for Ops in this respect has force. In view of above pointed circumstances and non submission of report of expert, it is obvious that the complainant has failed to prove the manufacturing defect in the mobile set in question.

8.                Complainant served legal notice Ex.C2 through postal receipt Ex.C3, but service of notice alone not enough to give cause of action to the complainant.

9.                Job sheet Ex.C4=R5 produced to show that actually the mobile set was taken to the service centre of OP3 on 3.2.2016, but the same was signified to be delivered on 4.2.2016 by the service centre. However, on 4.2.2016, it was found that though complainant has reported about “No Power”, but service centre recorded comments “Jack Locally changed, warranty void, pics attached”. So, this means that after inspection of the mobile set by the service centre, it was found that tampering of the mobile set was done through some local agent or from some unauthorized service centre. When such is a fact  borne from the documents produced on record by the parties, then certainly warranty clause ceased to have affect because clause no.5 of page no.9 of Ex.R4 is to the effect that warranty will not cover the product failure caused by installations, modifications or repair or opening of the product, performed by a non-Sony authorized person. As the Jack of the mobile set was got locally changed from the unauthorized person and as such, certainly warranty has become void in view of clause 5 of Ex.R4 referred above. Moreover, this mobile set was taken to the service centre after use for 11 months and 25 days and as such, the same shows some malafide intention of complainant in filing this complaint because warranty was to lapse on 9.2.2016, but the mobile set was taken for repair on 3.2.2016. If job sheet was not handed over to the complainant, then how she came in possession of Ex.C4, qua that no explanation offered and as such, submission advanced by counsel for complainant has no force that copy of job sheet was not handed over to the complainant even.

10.              After going through Ex.C1=Ex.R3, it is made out that one year warranty is for authorized service centre and warranty to be provided according to the manufacturer terms and conditions. So, in case, the benefit of warranty was to be availed by the complainant, then the same must have been availed by contacting the authorized service centre for getting the defect removed. However, local changes got done from a person not authorized by Sony Service centre and as such, in view of above referred endorsement on Ex.C1=Ex.R3, complainant lost her right to seek repair even. As act of complainant in getting changes affected locally made the warranty void and as such, complainant is not entitled for any relief.

11.               Therefore, as a sequel of the above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                                (G.K.Dhir)

                               Member                                       President

Announced in Open Forum

Dated:28.11.2016

Gurpreet Sharma.