BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.248 of 2016
Date of Instt. 13.06.2016
Date of Decision: 09.05.2017
Davinder Singh age 24 years S/o Late Balwant Singh, House No.813, Basti Mithu, Jalandhar, Mob. No.9914769091
..........Complainant Versus
1. Mobile Hut, Shop No.5, Old Sabzi Mandi, Opp. Dolphin Hotel, Jalandhar Through its Prop/Partner/Authorized Representative.
2. Service Point, 233/1 SUS Nagar, Near Preet Hotel, Jalandhar. Through its Prop/Partner/Manager/Authorized Representative.
3. Sony Mobile Communications (India) Pvt. Ltd. A-31, 2nd Floor, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Complainant in person.
Sh. Robin Budhiraja, Adv. Counsel for OP No.1 to 3.
Order
Karnail Singh (President)
1. This complaint presented by complainant, wherein alleged that the complainant purchased a mobile handset make Sony Xperia M5 dual IMEI No.352191070945382 vide Invoice No.R-19 dated 04.04.2016 from OP No.1. The above said mobile handset is water proof and dust proof. One year warranty was given by OPs for the above said handset. At the time of sale the OP No.1 told the complainant that the above said mobile handset is water proof, dust proof, in case of any complaint/defect if arisen in the said mobile handset, the defect shall be removed immediately by OP No.2. That within a warranty period i.e. after one month from the date of purchase, the above said mobile handset became out of order on 15.05.2016. On 16.05.2016, the complainant handed over the defective mobile handset to OP No.2 with complaint that “No Power, Dead, Call Hold and Heating Problem”. The OP No.2 checked the mobile handset and after checking they kept the handset with them and issued a service job sheet No.W116051600596 dated 16.05.2016 and told the complainant to collect the handset after 15-20 days. After 10 days the OP No.2 intimated the complainant that some water entered in the mobile handset which damaged the handset and demanded Rs.19,200/- for rectification of defect. When the complainant told them the said mobile handset is water proof/dust proof as warranted by the company, so, the question of entering the water does not arise but the OP No.2 ignored the version of the complainant rather they continue demanded to pay Rs.19,200/- for its repair. When the complainant requested them to return the mobile handset with handwritten statement that some water entered in it, but they refused to give in writing that the water entered in it. The demand of OP No.2 of Rs.19,200/- for repair of OP No.2 within warranty period is in genuine, illegal and baseless. The defective mobile handset is still lying with OP No.2 which they have neither repaired nor removed the defect nor returned after removal of defect. The defective one and inferior quality mobile handset containing manufactured defect has been sold to complainant which tantamount to unfair trade practice. The OPs have indulged in negligence and deficient service and as such the instant complaint filed with the prayer that the OP No.2 and 3 be directed to replace the mobile handset with new one with fresh warranty and in the alternative to refund the sum of Rs.25,000/- as per bill with interest @ 12% per annum and further to give cost of litigation Rs.3000/- and pay Rs.70,000/- as compensation for mental tension and harassment.
2. Notice of the complaint was given to the opposite parties and accordingly all the opposite parties appeared through their counsel and filed their joint reply and contested the complaint by taking preliminary objections that as per records of the company, the complainant purchased the said mobile handset for Rs.25,000/- on 04.04.2016 from OP No.1, after a detailed demonstration of the features, functions, applications along with the detailed explanation of all the warranty terms and conditions of the aforesaid mobile. It is further averred that the OP No.3 provides a limited warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with the terms and conditions of the warranty provided by it and cannot be held liable for the claims falling outside the scope of the warranty. The relevant terms of warranty provided by the OP No.3 to the complainant is as follows:
“ Subject to the conditions of this Limited Warranty, Sony warrants this product to be free from defects in design, material and workmanship at the time of original purchase by a Consumer, and for a subsequent period of One (1) year, which is the Warranty period.”
“If, during the warranty period this product fails to operate under normal use and service, due to defects in materials or workmanship, the Sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein.”
Furthermore Clause 3 of the terms of warranty provided by the OP No.3 to the complainant clearly states the following:-
“This warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the product. Nor does this warranty cover any failure of the product due to accident, modification or adjustment, acts of God or damage resulting from liquid.”
It is further alleged that since the damage occurred due to the negligence of the complainant therefore, an estimated cost of repair was shared with the complainant. It is submitted that the warranty stands void in the present case and that's the reason due to which the cost of repairing the handset was shared with the complainant, however the same was rejected by the complainant and the handset was delivered back to the complainant. On merits, the purchase of the mobile by the complainant is admitted but the remaining allegations are categorically denied.
3. In order to prove the claim of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith Bill Ex.C-1 and other documents Ex. C-2 to Ex.C-4 and closed the evidence.
4. Similarly, counsel for opposite parties No.1 to 3 tendered into evidence affidavits Ex. OP-1 and Ex.OP-2 alongwith documents Ex.OP-3 to Ex.OP-7 and closed the evidence on behalf of opposite parties No. 1 to 3.
5. We have heard the complainant in person and learned counsel for the opposite parties and also scanned the case file very minutely.
6. From the outset, it is the case of the complainant that he purchased a Mobile Handset Make Sony Xperia M5 dual for a sum of Rs.25,000/- on 04.04.2016 but after some time, the said mobile handset started giving some problem. As per assurance and warranty given to the complainant, it is clear that the said mobile set is water proof and dust proof but when the complainant deposited the said mobile set with OP No.2 Service Centre of OP No.3 when they alleged that some liquid was inserted in the mobile set due to negligence on the part of the complainant and therefore the mobile set is not covered within the warranty period rather it will be repaired on the charges basis and due to this refusal, the complainant came to the Consumer Forum for redressing of his grievances.
7. We have carefully gone to the case file and find that the complainant has brought on the file one very material document i.e. copy of warranty which is Ex.C-2, wherein it is clearly mentioned that the mobile set Xperia M5 dual is water proof and dust proof and the other terms and condition also mentioned in document Ex.C-3 but the OP has only relied upon the term and condition as mentioned only Ex.C-3 rather the OP did not bother in regard to the warranty given in the document Ex.C-2, which is the document of OP company and therefore, we can make reliance there upon without any hesitation. If the mobile set so sold to the complainant is water proof and dust proof then question does not arise to insert any liquid in the mobile set, if inserted then it means there is any defect in the mobile set and it is not disputed that the mobile set is within a warranty period, furthermore, the complainant has also brought on the file a job sheet Ex.C-4, whereas in the job sheet problems mentioned are No Power, Dead & Call Hold and Heating Problem, the mobile set was taken by the OP No.2 service centre after checking it and if there was any symptom of inserting of water therein then it must be described on the job sheet but job sheet is silent in regard to inserting of water in the mobile set. No doubt in order to prove that some liquid was inserted in the mobile set, the OP has brought on the file an affidavit of Ravneet Singh who is a mobile service engineer, whose affidavit is Ex.OP-1. No doubt in his affidavit he categorically mentioned that as there is clearly mentioned in the user guide that the ports and connectors should remain closed and in fact tightly closed in order to avoid the liquid to enter inside the handset, but here we like to make it clear that OP has not established on the file whether any user guide was given to the complainant or not. If so then how the complainant came to know regarding of such instructions as mentioned in the said user guide. So, under these circumstances, the availability of service engineer having no value in this case. From the over all circumstances, we came to the conclusion that the complainant is able to establish that the mobile set of the complainant having some defect which is required to remove by OP No.2 but he did not to do so. So, it is clearly established that there is deficiency in service on the part of the OP No.2 and 3.
8. In view of above detailed discussion, the complaint of the complainant is partly accepted and opposite parties No.2 and 3 are directed to repair the mobile set of the complainant free of cost as within warranty and return the same to the complainant in running condition, within 15 days from the date of order and further OP No.2 and 3 are directed to pay compensation of Rs.3000/- to the complainant for mental tension and harassment and litigation expenses of Rs.2000/-. Complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
09.05.2017 Member President
