Complainant Atul Pathania has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties no.2 and 3 to give him a new mobile or in alternative to refund the amount of mobile phone.  Opposite parties be further directed to Pay Rs.10,000/- for physical harassment and mental agony alongwith Rs.10,000/- as cost of litigation.

2.        The case of the complainant in brief is that he has purchased a phone Sony Xperia M-5- E5663-Black bearing IMEI No.352191070623401 from opposite party no.1 on 1.7.2016 for Rs.24,990/- vide bill No.51806 and this mobile is fully water proof and dust proof. He has next pleaded that on August 2016 the abovesaid mobile got wet because of rain and after that it stopped working then on 17 August 2016, he submitted the abovesaid mobile for its repair to opposite party no.3 registered service center/care center of opposite party no.2 vide Ticket ID No.16081700531 and Job No.W116081700531 dated 17.08.2016 and opposite party no.3 stated that his phone had gone wet and thus the warranty was void although the phone is under warranty and the warranty does not void on getting the phone wet as the phone was claimed as waterproof by opposite party on.2 on its website, Ads, Pamphlets etc and thus there is no reason of void of warranty on the basis of phone got wet. After that he requested the opposite party no.3 to get the phone repaired and consider it as under warranty and on his request opposite party no.3 sent his phone to the office of opposite party no.2 and they told him to wait for 15-20 days and after the expiry of this period, he went to the office of opposite party no.3 and then the opposite party no.3 on behalf of opposite party no.2 stated him that his phone’s warranty has been void, so they refused to repair the same and the phone is also in the custody of opposite party no.3. He requested many times to opposite party no.2 and 3 to repair his mobile phone or in case the phone is not able to repair, he may kindly be given a new handset, but the opposite party no.2 and 3 did not gave proper heed to his genuine claim and putting the matter away on one pretext or the other. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.       Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their written reply submitting therein that the opposite parties have also provided “User Guide” alongwith the handset, which mentions the precautions one should take while using the phone, and if a person does not comply with the same then opposite party no.3 is not liable for any damage/defect in the product. Further, this handset has been certified by international bodies for certain standards relating to water and dust resistance and these standards are acceptable worldwide. On basis of these certifications the opposite parties are making the claim regarding ‘water and dust resistance’ only which is not maintainable as company does not provide any warranty against this defect caused due to Dust and Water. He has next submitted that under the terms and warranty the opposite parties are not liable to repair or replace the “handset” as the product lies outside the scope of warranty. It is averred that the defect in the “handset” has arisen due to ingress of liquid. After purchasing the said handset, the complainant approached opposite party no.3 on 17.8.2016 raising an issue of “No Power” in the aforesaid mobile handset. The opposite party no.3 without any delay immediately attended the complainant and inspects the handset. Upon inspection it was observed by opposite party no.3 that the handset got damaged due to liquid ingression. The Unit was fully water damaged and upon liquid test, it was also observed that the liquid indicator turned red establishing the fact that the handset got damaged due to liquid ingression. Due to the aforesaid reasons the warranty with respect to the said handset stood void and therefore, an estimated cost of repair was shared with the complainant. However, the same was rejected by the complainant. The complainant refused to go for any chargeable repair action. Hence, the said handset was returned back to the complainant. Since the damage occurred due to the negligence of the complainant. Therefore, an estimated cost of repair was shared with the complainant. The warranty stands void in the present case and that’s the reason as to why the cost of repairing the handset was shared with complainant. The complainant has not gone through the warranty terms and precautions which needs to taken of before using the handset. It has next submitted that no cause of action has ever arisen in favour of the complainant and against the opposite parties, the instant complaint is false, malicious, vexatious and incorrect and is nothing but an abuse of the process of law and it is an attempt to waste the precious time of this Hon’ble Forum, as the same has been filed by the complainant just to avail undue advantage and to earn wrongful loss at the cost of opposite parties. The complaint is thus liable to be dismissed under section 26 of the Consumer Protection Act, 1986 (hereinafter referred to as the “Act”). It has further submitted that the said handset got damage due to complainant’s own negligence and that’s the reason as to why the warranty stands void. The complainant has not followed the instruction before using the handset and due to the same the handset got affected due to liquid ingression.

4.        Upon notice, opposite party no.1 also appeared first through Advocate Ramesh Kashyap and thereafter through Advocate Ajay Sharma and case was adjourned to file reply and several dates were given for filing reply but he did not file reply and the Forum ordered that reply be file on payment of costs but nobody had come present on behalf of opposite party no.1 and deposit the costs and file the reply. Lastly, on 11.1.2017 case called several times but none had come present on its behalf, therefore, it was proceeded against exparte vide order dated 11.1.2017.

5.      Complainant tendered into evidence his own affidavit Ex.CW-1, alongwith other documents Ex.C1 to Ex.C4 and closed the evidence. 

6.       Counsel for the opposite parties no.2 and 3 tendered into evidence affidavit of Priyank Chauhan Ex.OP-2,3/A, alongwith other documents Ex.OP-2,3/1 to Ex.OP-2,3/4  and closed the evidence.

7.        We have intently perused all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsels for the present litigants while (at the same time) taking the due judicial-notice of the OP1 vendor’s intentional ‘ex-parte’ absence, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ post. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial but discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.

8.       We find that the present dispute/complaint has arisen as a result of the alleged ‘refusal’ of ‘repairs’ and subsequent ‘refund/replacement’ of the complainant’s mobile set on the ground that ‘water’ has drenched/damaged the same, beyond ‘repairs/replacement/refund’ although the same was very much in the warranty period.

9.       The complainant has in turn pleaded that the said make/model mobile-set was categorically purchased by him on account of its ‘advertisement/publicity’ and assurances of its being fully ‘water-proof’ and ‘dust-proof’ but has admittedly affirmed that the same got soaked in rain and stopped functioning in spite of his taking all its hand-book advertised/advised caution/ safety measures etc. The defective set being within ‘warranty’ was duly delivered for repairs to the OP3 Service Centre of the OP1 Mfrs. who had unceremoniously refused their after sales services giving prompt to the present complaint. The complainant has proved his allegations of inadvertently attractive/false ‘publicity/advertisement’ and subsequent ‘defective’ performance upon getting soaked in the ‘rain’ vide his affidavit Ex.C1 and Job Sheet/Invoice/Cash Memo/Specification Chart/others (Ex.C2 to Ex.C4) for Rs.24,990/- with ‘one year warranty’ of the sold product i.e., the mobile-set, in question.

10.     We find that the OP2 Manufacturer and the OP3 Service Centre vide its written reply (duly supported by the affidavit Ex.OP2,3/A) have pleaded therein that ‘damage’ had been caused due to misuse and non-observance of the requisite care, caution and directions of use as advised in the accompanying booklet. However, the OPs have failed to produce any cogent evidence/ expert opinion to support their above ‘explanation’ and as such the same amounts to a ‘bald’ statement having ‘little’ evidentiary value. Moreover, the Repairs, Replacement and Refund’ of the Samsung Products (sold at the OP1 shop) has been the responsibility/liability of the OP2 & the OP3 (along with that of the OP1 vendor) and as such we are not prepared to accept these arbitrary pleas of the opposite parties. It is not understood as to how a simple drench of ‘rain’ can damage a ‘product’ claimed to be ‘water-proof’ and fully publicized for the same as ‘sales’ tactics and that duly holds all the opposite parties jointly, severally and co-extensively liable to an adverse statutory award, here.

11.     We find that the complainant could not enjoy the full benefits of his Samsung Mobile Set on account of its ‘defective’ working and subsequent refusal of its ‘replacement/repairs’ etc by the opposite parties. Thus, we are of the considered opinion that the present complainant has been entitled to the statutory relief under the applicable Act.

12.     In the light of all above, we partly allow the present complaint and thus ORDER the titled opposite parties to refund the Mobile Set’s depreciated cost (assessed at Rs.20,000/-)  to the complainant besides to pay him Rs.5,000/- as cost and compensation. The compliance of the present award shall be the joint, several and co-extensive liability of the titled opposite parties and its cost may be borne between themselves as per their mutual settlement (if any) but the compliance shall, by all means be completed/exhausted within 30 days of receipt of the copy of these orders otherwise they shall also be liable to pay accrued interest @ 9% PA from the date of the present orders till actually paid

13.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.  

                 (Naveen Puri)

                                                                               President   

Announced:                                                           (Jagdeep Kaur)

July, 21 2017                                                          Member

*MK*