DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  16^th  day of April  2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 21/12/2014

               : Sri.V.P.Ananatha Narayanan, Member

                                                      (C.C.No.178/2014)       

Dr.Premkumar,

Vaishak, Tailor Street,

Koppam Amsom, Palakkad 3 Village,

Palakkad Taluk & District                                       -        Complainant

(By Adv.V.K.Venugopalan) 

Vs

1.M/s.Kumar Retail Pvt.Ltd.

   10/520, (2)(3)(4) & (5),

   Victory Corner,

   Koppam,Palakkad – 678 001

   (Rep.by its Manager)  

2.The Commercial / Business Manager,

    Sony India Pvt.Ltd. A-31, Mohan Co-Operative

    Industrial Estate, Madura Road, New Delhi – 110 044

(By Adv.S.M.Unnikrishnan)

3.Proprietor,

   M/s.ATech Services, 7/406(1),

  Sekharipuram, Ayyappuram Jn. Palakkad – 3

  (As Franchise of Address No.2)                      -        Opposite parties

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant has purchased a brand new smart phone Sony Experia Z-2  from opposite party No.1 for  Rs.43,200/-. On 01/9/2014 the complainant noticed cracks on its back cover and contacted opposite party No.3, the service centre for the products of opposite party No.2 in Palakkad for repairs / replacement. The service personnel of opposite party No.3 demanded Rs.24,995/- from the complainant to get the cover replaced. The crack was  occurred well within the warranty period immediately after the purchase i.e. within a period of one month.

Complainant submitted that he learned from the web site that Sony Experia Z-2 phone has inherent manufacturing defects of back cover cracking. Experts also reported that it happens due to poor technology incorporated in making the phone  water proof. This phone could be used for underwater photography as per the brochures supplied. The phone was handled very carefully throughout. Complainant alleged that the phone has inherent manufacturing defect.

On 17/09/2014 a legal notice was caused to be issued to opposite parties No.1 & 2 being the retailer and manufacturer, demanding replacement/repair. 3^rd opposite party is joined in the party array, being necessary party to the proper disposal of the complaint. Though the opposite parties 1 & 2 received the notice, opposite party No.1 preferred to reply to it evading the responsibility. No response came up from the second opposite party. Complainant submitted that unreasonable refusal to honour the warranty is a clear breach of contract and unfair trade practice. There is clear deficiency in service from side of the opposite parties. The unreasonable refusal by the opposite parties has also caused mental agony and loss to the complainant. Hence the complaint.

Complainant prays for an order directing opposite parties to replace the smart phone or repayment of the price amount Rs.43,200/- and pay a compensation of Rs.10,000/- towards the inconvenience and mental agony suffered by the complainant with cost of the proceedings. 

Complaint was admitted and notices were issued to opposite parties.    After receiving the notice 1^st and 3^rd opposite parties were remained absent. Hence set them exparte. 2^nd Opposite party filed version contending the following:

2^nd opposite party admitted that complainant has purchased a Sony Xperia Z2 Mobile phone bearing model No.D6502 and IMEI No.352494060630869 on 12/08/2014. It is true that the complainant approached the opposite party No.3 for the first time on 01/9/2014 with the problem of broken back cover. That upon physical inspection of the handset by the engineer, it was found that the handset was damaged due to external cause. It is submitted that the back cover of the said handset was broken clearly evidencing external damage resulting from mishandling, lack of care etc., That as per the Terms of the warranty, such damage renders the warranty void and rectification / repair of damage to the handset caused due to external factor was not covered in the warranty terms and conditions. Therefore, the complainant was informed that the handset could not be repaired free of cost under the terms of the warranty and that the repairs in such cases are carried out on a chargeable basis.

However, in such handsets, the cost of repair turns out to be extremely uneconomical for the customer, therefore as a goodwill gesture the representatives of opposite party No.3 made an offer to the complainant to replace the current handset with a new  one at a discount of 50% on the MRP or with a refurnished handset at 33% of MRP.  It is submitted that the aforesaid was communicated to the complainant by the representatives of the opposite party No.3 on 01/9/2014 and 3/9/2014. It is further contended that the complainant collected the handset on 13/9/2014 without depositing it with the opposite party No.3.  It is submitted that the terms of the warranty are binding on the parties and the opposite parties cannot be held liable beyond the scope of the warranty provided by Sony India Pvt.Ltd. Opposite party had sent a letter on 15/12/2014 to the complainant mentioning the problem with the handset.

Opposite parties admitted that problem was occurred within the period of warranty but it was on account of external factors and not due to any manufacturing defect as alleged. It is submitted that had it been the case that the handset was suffering from a manufacturing defect, it would not have functioned even for a single day, let alone for one month. Therefore, it is clear that the complainant was making false and baseless allegations against the opposite parties only to make wrongful gains there from.

Opposite parties submitted that  they are still willing to provide a new handset to the complainant at a discount of 50% on the MRP or refurnished handset at 33% of MRP in order to settle the matter in an amicable manner. Therefore complainant is not entitled to any relief as claimed by way of the present complaint.

 Complainant filed chief affidavits. Ext.A1 to A5 series were marked from the side of the complainant.  MO1 also marked from the side of the complainant. No affidavit was filed by  2^nd opposite party. Other opposite parties were set exparte.

The following issues are considered

1.Whether there is any deficiency in service on the part of opposite parties?

2.If so, what is the relief?

Issue 1& 2

We have perused the documents filed by the complainant. 2^nd opposite party admitted the purchase of Sony Xperia Z-2 Mobile phone bearing model No.D6502 and IMEI No.352494060630869  on 12/08/2014 and  complainant had approached 3^rd opposite party on 01/9/2014 with the problem of broken back cover. 2^nd opposite party contended that on physical inspection of the handset by the engineer, it was found that the handset was damaged due to external cause. According to 2^nd opposite party handset was broken by  mishandling, lack of care etc. by the complainant . Complainant submitted that he has used the mobile with due care and caution. Complainant filed IA 443/16 filed for the cause production of particulars of the concerned engineer to cross examine him. But 2^nd opposite party neither furnished the address of the engineer nor produced him for giving evidence. Hence adverse inference was taken against opposite parties. 2^nd opposite party admitted that the damage to the mobile was occurred during the period of warranty. On the physical verification it is seen that there is some internal crack on the back cover of the mobile.  In this circumstance,  the opposite parties are bound to repair the mobile free of cost. No contrary evidence to the evidence adduced by the complainant.   Since complainant has not taken any steps to prove the manufacturing defect of mobile, we are not in a position to direct opposite parties to replace the mobile or to pay cost of mobile.  However, in the above circumstances we are of the view that it was the bounden duty of the opposite parties to replace the back cover of the mobile free of cost. Opposite parties committed deficiency in service in not providing proper after sales service.

Under these circumstances we partly allowed the complaint. Opposite parties are jointly and severally liable

1.  to replace the back cover of the mobile,
2.  to pay Rs.5000/- (Rupees Five thousand only) as compensation for mental agony and
3. Rs.2000/- (Rupees Two thousand only) as cost of proceedings.

If the opposite parties not replaced the back cover within one month from the date of receipt this order, complainant is entitled to get an additional amount of Rs.25,000/- (Rupees Twenty five thousand only) from the  opposite parties. 

Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization. 

Pronounced in the open court on this the 16^th  day of April  2016.

        Sd/-

                      Shiny.P.R.

                      President   

                         Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 –  Retail Invoice No.PDNVCR319 dtd.12/8/2014 issued by 1^st opposite

              party

Ext.A2  - Photocopy of  Invoice   dtd.13/9/2014 issued by 1^st opposite party 

Ext.A3  – Copy of email sent by the complainant to 2^nd opposite party dated

              14/09/2014  

Ext.A4  – Photocopy of comments  received from internet in respect of phone

             Xperia Z-2

Ext.A5 series  –  Copy of registered notice issued to opposite parties with postal

                         receipts and acknowledgement cards

MO1 – Mobile Set of Sony make

Exhibits marked on the side of complainant

Nil

Cost   

Rs.2,000/- allowed as cost of the proceedings.