PER SMT. JYOTI IYER - HON’BLE MEMBER :
1.This Complaint has been filed by the Complainant against the Opposite Parties alleging them of deficiency in service as well as for practicing unfair Trade practice for supplying
mobile phone suffering from inherent manufacturing defects and for levying charges towards repairs for the said mobile under warranty period and further for directions to the Opposite
Parties to refund to the Complainant the amount of Rs.8000/- the cost price of the defective mobile phone along with interest @ 18% from may 2008 till realization, Rs.2000/- as
Compensation towards mental agony and cost of litigation Rs.1000/-.
2. The facts of the case in a nut shell are as follows:-
It is the case of the Complainant that M/s. ACCEL FRONTLINE LTD. is the Service Centre of the Sony Ericsson Mobile India Ltd. who is the importer of the said Chinese mobile phone product sold under their name through their dealer M/s Zoop from whom the Complainant purchased the said mobile (hereinafter for the sake of brevity and convenience referred to as Opponent No.1, Opponent No.2 and Opponent No.3 respectively). It is the case of the Complainant that on 31/05/2008 purchased from M/s.Zoop the dealer Sony Ericsson Model W3801 (IMEI 3545260206685604) for Rs. 8000/-Copy of the said purchase bill for Rs. 8000/- is at Exhibit “A” to the Complaint.
3. It is contention of the Complainant that the said mobile suffered from defects within 2 months of purchase and was therefore sent to Opponent No. 1 the service center for repairs thereafter also on 2 occasions again defects occurred in the said mobile and could not be rectified as the said mobile was of Chinese make i.e manufactured by SE PUTIAN Mobile Comm. Co. Ltd. Beijing CN
4. It is further contended by the Complainant that there is an inherent manufacturing defect in the said mobile which could not be repaired in India by Opponent No. 1 the Service Centre. The said mobile is till today lying in the custody of Opponent No.1. The Complainant further avers that inspite of the said mobile phone being within the warranty period he was asked to pay Rs. 225/- towards repair cost by the Opponent No.1. Therefore the Opponent No. 1 is deficient in services as well as guilty of practicing Unfair Trade Practice.
5. The Complainant through the Consumers Welfare Association corresponded with Opponent No. 1 & 2 making several request for refund of purchase price of the said mobile suffering from inherent manufacturing defect however, in vain. The Complainant was therefore constrained to lodge this present Complaint against Opponents alleging them of deficiency in services as well as of Unfair Trade Practice.
6. Pursuant to issuance of notice to the Opponents, only the Opponent No. 1 appeared and filed its W.S denying all the allegations made in the Complaint against it. It is the contention of Opponent No. 1 that the said mobile is not a Chinese make as they are A/R Service providers of Opponent No. 2 Sony Ericsson Mobiles and offer service support only for mobile manufactured by Opponent No.2 Sony Ericsson and are therefore well trained to repair/rectify any defect in the said mobile and that they are in possession of the original spares required for replacement during day to day services and deny that they are/were unable to repair the said mobile. The Opponent No.1 further contends that the said mobile was brought for repairs regarding display and hanging problems not in July 2008 as alleged by the Complainant but on 4th Dec.2008 and after necessary repairs it was ready for delivery on 9th Dec 2008. However the Complainant came to collect the same on 11th Dec 2008 at the time of delivery it was found that the said mobile was charging low therefore the Complainant was requested to come on 13th Dec 2008 for collecting the same. The Opponent No.1 further avers that on 13th Dec 2008 after changing the battery of the said mobile it was ready for delivery however learning about the said problem & replacement the Complainant refuse to accept the said mobile and insisted for a new one of different model all this happened on 13th Dec2008 when the problem was detected. The Opponent No.1 further avers that regard to charge of Rs.225/- it is party accepted as it is printed on form which is computer generated and that it being a typographical error the Complainant is taking advantage of the same and in anyway no amount was paid by the Complainant towards repairs of the said mobile. The Complainant allegations regarding the said mobile cannot be contested by him as he is not aware of the present condition and therefore the claims of the Complainant are false and fabricated. No Reply was given to the Consumers Welfare Association letters as it was within our knowledge that this was being manipulated by the Complainant & had the Complainant’s statements being genuine he should have initiated legal notice against them i.e Opponent No.1 for holding his mobile and for causing mental agony for such a long period. The Opponent No.1 therefore denies any deficiency in service on their part and Unfair Trade Practice by them. Therefore, Opponent No.1 prays for dismissal of the Complaint against it and further for directions to the Complainant to collect his mobile lying with the them i.e. Opponent No.1.
7. The Opponent No.2 and 3 despite being duly served with the notice failed to appear before us nor filed their W.S. hence at the time of hearing on 25/01/10 Ex-parte orders were passed against them.
8. We have perused the Complaint, W.S of Opponent No.1,Affidavit of evidence and W.A.’s of the Complaint and Opponent No.1, so also heard the Complainant- in- person at length and at the time of hearing none was present on behalf of Opposite Party No.1 since Written Argument filed by Opposite Party No.1 are on record we proceed to pass orders on the basis of the same. After considering the rival contentions raised by both the parties. Our finding, observations reasons are as follows-:-
9. It is contention of the Complainant that he purchased on 31/05/08 a Sony Ericsson mobile being Model No. Sony W 380I IMEI No. being 35452602-0685604 for Rs.8000/- from Opponent no.3 the dealer. It is further contended by the Complainant that on the box of the said mobile phone name of one company being Beijing SE PUTIAN Mobile Comm. Co. Ltd. manufacturer Beijing CN is printed and therefore Opponent No.2 is the not manufacturer of said mobile and therefore is importer of said mobile. The stand taken by the Opponent No.1(service center ) in their written statement is that said mobile is not of Chinese make as they are authorized service providers of Opponent No.2 i.e. Sony Ericsson Company mobile phone and offer service support only for mobiles manufacturer by Sony Ericsson and are therefore well trained to provide the necessary service/repairs required to be made and are also in possession of the original spares that are required for replacement during day to day services. The further stand taken by the Opponent No.1 in their W.A. is that mobile is not imported by Sony Ericsson but manufactured by Sony Ericsson and therefore the plea of Chinese make will not arise as Sony Ericsson has manufacturing units at various places throughout the globe. During the course of argument the Complainant showed us the box in which the said mobile was packed. On careful perusal of the said box the following particulars were printed -
Model : W380i(Champagne Black)
Commodity : Mobile Handset
Quantity : 1 SET (W380i Phone, Battery, Charger, Portable
Handsfree HPM-64, 512MB Memory Stick M2, USB
Cable DCU-65, CD complete & User Guide)
Month & Year of Import : Apr. 2008
Manufactured by : Beijing SE PUTIAN Mobile Comm. Co. Ltd.
Tian Zhu West Road, A Area Tian Zhu Airport Industrial Zone
Shun Yi District, Beijing, CN
FOR SONY ERICSSON MOBLE
COMMUNICATIONS AB
Imported by : Sony Ericsson Mobile Communication (India)
Private Limited, 4th floor, Dakha House, 18/17,
WEA Karol Bagh, New Delhi – 110005
Consumer Care Cell : Dial 1800 11 1800* (from BSNL/MTNL)
390 11111 (Add you city STD code when dialing
from Mobile Phone)
MRP : Rs.8795/- (Inclusive of all taxes)
In view of the above it can be safely concluded that the said mobile is manufactured by Beijing SE PUTIAN Mobile Comm. Co. Ltd. Beijing CN and that the said mobile has been imported by Sony Ericsson Mobile Communication (India). However, it appears that the Complainant has not seen under the column manufactured by Beijing SE PUTIAN Mobile Comm. Co. Ltd. Beijing CN the later portion printed on the said box which is as follows –
FOR SONY ERICSSON MOBLE COMMUNICATIONS AB
This clearly reflects that Beijing SE PUTIAN Mobile Comm. Co. Ltd. Beijing CN has manufactured the said mobile phone for Sony Ericsson Mobile (Communications) India (P) Ltd.i.e. Opposite Party No. 2. It is pertinent to note that if Opponent No.2 has printed on the box of the said mobile the name of the said manufacturer etc. as reproduced above no suppression can be attributed to the Opponent No.2 that the said mobile was manufactured in china for Opposite Party No.2. It is world wide renounced that most of the mobile phones are manufactured in china as labour is cheap in china & only software is uploaded where the parent company is located. Further it is pertinent to note that the said mobile phone has a IMEI Number aforementioned which is unique in case of each mobile phone and that the Opponent No.2 i.e. Sony Ericsson has given a model no being W 380i and therefore, it affix liability on the Opposite Party No.2 as a manufacturer for any defect etc. The Complainant has not come out with a specific case that representation was made by the Opponent No.3 Dealer at the time of selling the said mobile phone of Opponent No.2 that it was manufactured by a particular country & it was contrary to the representation made by the Opponent No.3 neither has the Complainant bought anything on record that we can uphold the contention of the complainant.
10) It is contended by the Complainant that the said mobile phone purchased from the Opponent No. 3 suffered from defects within 2 Months of purchase and was given to Opponent No.1 the service for repairs on 3 occasions for problems which are enumerated hereafter but the said defects could not be rectified.
Date Complaint Job No./returned
July 2008 Blanking out and hanging After 4 days
04.12.2008 Display problem-display flickers Del.chalan MUT-RDN
No audio – phone hangs-freeze 0011299/2008
Problem, Menus and/or application slow On 09.12.2008
11.12.2008 Battery not charging-Orig.battery slow MUT-SE-072958/2008
Found replaced with old batter by O.P.1 -Verified& accepted
Phone hangs in same apples.
Phone unserviceable defects persist -defects admitted
11. However, the Opponent No.1 has admitted in its W.S that on 4th Dec 2008 the said phone was for the 1st time given for repairs of problems regarding display & hanging to Opponent No.1.Replacements were done accordingly & the said mobile phone was ready for delivery on 9th Dec 2008 However the Complainant came to collect his said mobile on 11th December, 2008 at the time of delivery upon checking the said mobile it was found that the charging was low hence, the Opposite Party No.1 requested the Complainant to come on 13th December, 2008 to collect his mobile. It is further contended by the Opposite Party that said mobile was kept under observation and later the battery was changed the same was ready for delivery on 13th December, 2008. The Complainant visited our service centre having known about the problem and replacement made his schemingly refused to receive the mobile and insisted on a new one of a different model. The specifications made in para 2 that the battery was replaced and that he verified and accepted the same happened only on 13th December, 2008 and not on 11th December as it was the day the problem was detected. From the perusal of Job sheet on record and in view of the admission of the Opposite Party No.1 in their written statement it is clearly seen in the job sheet of Opposite Party No.2 delivered date reflected is 11/12/2008 the problems reported as are follows – Display problem – Display Flickers, Audio problem – No audio, Phone hangs – Freeze problem – Menus and or application slow and problem reported
Reported Remarks – IN H/S DISPLAY PROBLEM, RINGTONE PROBLEM, PHONE
HANG PROBLEM, H/S, BBC TAKEN.
In another document further it is also reflected in the customer acknowledgement dated 11/12/2008 problems reported capacity charging problem – not original battery message
Reported Remarks – IN H/S BATTERY DISCHARGE PROBLEM, REPEAT CASE SIME TIME TAG NO.06681, H/S, BBC TAKEN
12. It appears that on two occasions the same problems persisted in the said mobile as reflected from the aforementioned extracts from the job sheet. It is also categorically admitted in terms that the battery was not charging properly. Though it is clearly reflected in the two job sheets dated 11/12/2008 that the same problem persisted. In our view it appears that either no spares were available or the said mobile was beyond repairs as it suffered from inherent manufacturing defect. There is no documentary evidence on record produced by the Opposite Party No.1 to show that the Complainant was time and again asked to collect his said mobile which was allegedly ready for delivery on 13/12/2008 after rectification. Further if the contention of the Opposite Party is to believe we fail to understand why no letters / written intimation was by the Opposite Party No.1 to the Complainant to collect his mobile which was allegedly ready for delivery after rectification on 13/12/2008. It is also pertinent to note that the letters dated 06/01/2009 and 27/01/2009 addressed by the Consumer Welfare Association on behalf of the Complainant to Opposite Party No.1 and Opposite Party No.2 respectively also were not replied by the Opposite Party Nos.1 & 2. We failed to understand to prevent the Opposite Party No.1 to place on record that the said mobile phone was ready for delivery on 13/12/2008 but the Complainant refused to accept the same for the said reasons. Hence, we are of the opinion that the stand taken by the Opposite Party No.1 in their written statement is after thought just to evade its legal liability created under the statute. In our view though there is no documentary evidence produced by the complainant in form of Job sheet issued by the Opponent No.1 for repairs of the said mobile in the month of July 2008 & the same is also denied by the Opponent No.1in their W.S. But considering the overall appreciation of facts and circumstances of the case we are inclined to uphold the contention of the Complainant that the said mobile suffered from inherent manufacturing defects leaving aside that within two months i.e. in July 2008 from purchase on 31/5/08 the said phone developed defects and subsequent job sheets on record support the Complainants case. For the first time the Opposite Party No.1 after filing of the case has come out with a stand that the said phone is ready for delivery since 13/12/2008. However, there is no documentary evidence to support the same that the said mobile phone was ready for delivery on 13/12/2008. It is also pertinent to note that on the delivery challan dated 11/12/2008 issued by Opposite Party No.1 some of the conditions printed on the backside of the said challan are as follows :
Terms & Conditions for warranty Repairs on backside of Delivery Chalan dtd.11/12/08
9. ACCEL shall make all efforts to ensure that product is repaired within 7 (seven) days from the date of the receipt of faulty product. At times, however, due to non-availability / shortage of critical spare parts or complicated fault, the repairs turn around time may take longer than the indicated time for delivery in the Acknowledge Slip ACCEL will not be responsible for any loss/losses whatsoever in the event of the delay in repairs for such aforementioned reasons.
10. The customer shall take delivery of the product within 14 (Fourteen) days of delivery dated/written intimation from us. This shall be regardless whether the product has been repaired or not. In the event customer do not take the delivery within-45 (Forty five) days from the delivery date/written intimation ACCEL reserves the right to auction the product to recover the repairs and auction charges from the customer.
13. It is pertinent to note that none of the above referred conditions would come to the rescue of the Opposite Party as they were not complied. Though there is no period prescribed in case of non-delivery of the said mobile phone in case of shortage of spares / complicated fault etc. it is clearly seen that a considerable amount of delay has occasioned and since on two occasions the same fault has occurred. Further considering the fact that the same problems persisted it appears that the Opposite Party No.1 was unable to rectify the said defects as reported by the Complainant as the Opposite Party No.1 themselves state in their job sheet dtd.11/12/2008 that it is repeat case. Therefore, we are of the opinion that the defects were persistent and could not be rectified and probably would arise again though the Opposite Party No.1 has said in their written argument that the said mobile is ready for delivery. However, since, twice the same defects are occurred we are of the opinion that the said mobile suffers from inherent manufacturing defects. Therefore, it would be just and proper to direct the Opposite Party No.2 to refund the amount of Rs.8,000/- as reflected in the invoice at Exhibit-‘A’ alongwith interest @ 9 % from the date of purchase until realization.
14. The stand taken by the Opposite Party No.1 that they did not reply to the letter dated 06/01/2009 and 27/01/2009 addressed on behalf of the Complainant by the Consumers welfare Association that this was a manipulation being done by the Complainant and that if the Complainant’s statement were genuine he should have initiated a legal notice against us for holding his mobile and causing him mental worries for such a long period. This stand appears absurd and unsustainable least the Opposite Party No.1 should have done is refuted the allegations made against them in the said letters and therefore, it appears to be inconceivable and we find substantial force and truth in the contention raised by the Complainant and the subsequent denial by the Opposite Party No.1 appear to be after thought.
15.It is contention of the Complainant that despite the said mobile phone being under warranty he was given an estimate of Rs.225/- towards repair charges. On perusal of Exhibit-”A” to the Complaint the Invoice date 30/05/2008 issued by M/s.Zoop, the dealer i.e Opponent No. 3 it is clearly reflected in the said invoice that purchase of “All the mobiles bought under warranty will be taken care at the “Respective Company Service Centre” thereby we are not responsible of the mobile which is under warranty at our shop. All mobiles phone Accessories -6 months warranty at the respective Company’s Service Centre” Therefore, there is no doubt that the said phone was under warranty and the Complainant was not liable to pay any charges towards repairs during warranty period. Further on perusal of the job seet it is clearly reflected in the column of the Estimation Amount Rs. 225.00 is written as well as the machine status indicated is under warranty (WTY) We fail to understand how the said amount is charged when the phone is under warranty. It is also pertinent to note that the Opponent No.1 in its W.S has stated that “ the allegation that an amount of Rs. 225/- charged is partly accepted to the extend that it was printed on the form but the amount was not charged, as the form is a computer generated format where the space should have been changed according to service done it was only a typographical error which the Complainant has taken to his advantage. And we called upon the Complaint to prove that he has made any payment as stated above. This stand of Opponent No.1 appears to be unconceivable as all forms cannot be printed with estimated amount of Rs.225/- rather in case of cell phone for repairs under warranty the form would be printed without any estimation cost. It appears that just to cover up its follies the Opposite Party No.1 is trying to come up with this false and flimsy stand. Though the Complainant has admittedly not paid any sum towards repairs of the said mobile phone the Opposite Party No.1 intended to recover the said sum from the Complainant and took a summersault just to shield itself saying that the Complainant has not paid any charges even though they have in categorical terms admitted that they are partly accept the said allegation. It is also pertinent to note that on the delivery challan dated 11/12/2008 issued by Opposite Party No.1 some of the conditions printed on the backside of the said challan are as follows :
Terms and Conditions for warranty Repairs on backside of Delivery Chalan dated.11/12/2008
- ACCEL shall not be obliged to undertake warranty of products found waterlogged, liquid damaged or tampered as a result of repairs carried out by any unauthorized repairs.
- ACCEL is not liable for any delays, on performances, failure or non delivery of the products due to contingencies arising from any force major such as acts of GOD, storm, earthquake, accident, strikes lockout, industrial dispute, labor-trouble transportation embargo, existence of any state emergency, war, civil commotion, not, inability to obtain any material refuel of license, approval of imposition of action of any measure taken by government which renders it impossible or impractical for ACCEL to perform supply, service or deliver the product to the customer.
It is not Opposite Party No.1’s case that the above referred condition no.2 & 10 are applicable to the present case. Therefore, we are of the view that the Opposite Party No.1 is guilty of practicing unfair trade practice. We direct the Opposite Party No.1 not to charge the Customers / Complainant when the mobile phone are within the warranty period.
16.In view of the above discussion we are of well considered view that the Opponent No.2 is clearly deficient in their service for delivering the said mobile phone with inherent manufacturing defect. We are also of the view that charging for a mobile under warranty period for repairs by the Opponent No.1 the Authorized Service Centre of Opponent No.2 would amount to practice of Unfair Trade Practice. Though the Opponent No.1 has stated in W.S. & W.A that the said mobile is ready for delivery but it is only after filing of the complaint by the Complainant on 25/02/2009. It is pertinent to note that the affidavit filed by the Opposite Party No.1 in support of their written statement is not affirmed by the concerned. Assuming for the sake of arguments that the said phone is now ready for delivery after necessary rectification. How long can the Opposite Party No.1 retain the said mobile phone for repair is a question of vital importance and in the present case the phone was purchased on 31/05/2008. In today’s time a person becomes handicap without a mobile as his/her day to day communication with the others is disrupted therefore, the Complainant after waiting for a long period was constrained to buy a new mobile phone and cannot expect the Complainant to get until eternity to get his said mobile phone rectified. The Opposite Party No.1 is being the Authorized Service Centre of Opposite Party No.2 is guilty of unfair trade practice. The Opposite Party No.2 is the manufacturing company of the said mobile suffering from inherent manufacturing defect. The Opposite Party No.3 - the Dealer is liable for selling defective mobile hence, Opposite Party Nos.1, 2 & 3 would be jointly and/or severally responsible to the customer / Complainant for the refund of cost price. There is not the slightest of doubt in our mind that the Complainant must have encountered a lot of inconvenience and difficulties until he bought a new mobile. We are also of the view that the Complainant must have been frustrated as the sole purpose for which the said mobile was brought stood defeated as it suffered from inherent manufacturing defects which were beyond repairs. Further we are also of the view the Complainant must have gone through immense mental agony and is still going through the same till date and that he was so much so constrained that he had to approach this forum for redressal of his grievances and needs to be compensated for the same to achieve the ends of justice hence the following order.
-: O R D E R :-
(1) The Opposite Party Nos. 1, 2 & 3 are jointly and/or severally liable to refund to the complainant Rs.8000/- (Rs.Eight Thousand Only) the price of the said mobile
which is suffering from inherent manufacturing defect along with interest @ 9 % from may 2008 until realization.
(2) The Opposite Parties Nos.1, 2 & 3 are jointly and/or severally liable to pay Compensation to the Complainant of Rs.500/-(Rs.Five Hundred Only) towards mental
agony etc.
(3) The Opposite Parties Nos.1, 2 & 3 are jointly and/or severally liable to pay Rs.500/- (Rs.Five Hundred Only) towards cost of litigation.
(4) The Opposite Parties No.1,2,& 3 are directed to comply with this order within four weeks from the date of receipt of the copy of this order. In default 18 % interest
would be applicable on the above amount.
(5)Certified copies of this order be furnished to the parties.
