Punjab

Ludhiana

CC/14/760

Aman Sharma s/o Naresh Sharma - Complainant(s)

Versus

M/s Dee Kay Electronics - Opp.Party(s)

Kim Bhalla

27 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.                                   

                                                          C.C. No.760 of 10.11.2014

                                                          Date of Decision:27/02/2015

Aman Sharma s/o Naresh Sharma r/o B-1-194, Guru Nanak Pura, Civil Lines, Ludhiana. 

                                                                                      Complainant

                             Versus          

1.M/s Dee Kay Electro Vision, Ghumar Mandi Chowk, Ludhiana-141001.

2.Sony India, Registered Office A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044, through its authorized representative/Incharge.

3.Aroma Instant Services, SCO 39-G, LGF, BRS Nagar Market, Opp.Police Station, Ludhiana-141001, through its authorized signatory.

                                                                                                Opposite parties

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:    Sh. R.L. Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Ms.Babita, Member

 

Present:       Sh.Kin Bhalla, Adv, for complainant.

                   Op1 and OP3 ex-parte.

                   Sh.Rahul Pathak, Adv. for OP2.

                                                ORDER

R.L. AHUJA, PRESIDENT.

 

1.                Present complaint under Section 12 of the Consumer Protection Act, 1986 has been filed by Sh.Aman Sharma(hereinafter in short to be described as ‘Complainant’) against M/s Dee Kay Electro Vision, Ghumar Mandi Chowk, Ludhiana and another (hereinafter in short to be described as ‘OPs’) directing them to repair the handset or to replace the mobile handset with new one or to refund the full payment of mobile set i..e Rs.25,500/- to the complainant alongwith Rs.50,000/- as compensation on account of harassment suffered by the complainant and litigation expenses to the complainant.

2.                In brief, the case of complainant is that the complainant approached OP1 for the purchase of one mobile Sony Company and at that time, the employees of OP1 assured the complainant that Sony company shall give desired satisfactory service and that Sony mobile company is one of the world’s leading company and one of the best companies in the customer satisfaction and mobile handsets. Believing such assurances, the complainant purchased one Sony Xperia ZR/BLK mobile handset for Rs.25,500/- vide bill No.RI 5370 and IEMI No.35660305015017-7 dated 18.12.2013 with the assurance that it carries one year comprehensive guarantee which include breakage guarantee also. The said mobile worked well for 1-2 months and thereafter, the said mobile started giving problems. But it was minor problem, so the complainant never bothered for it, as the complainant required the mobile for his daily use. However, after a few days back, the mobile screen of the mobile of the complainant got cracked and complainant approached the service station i.e. Op3 for the repair of the same. The Op3 assured the complainant that it will be repaired and delivered to him within short span of time and service station issued job card dated 13.10.2014 to the complainant. At that time, the OP3 took the mobile handset from the complainant and issued the jobsheet to the complainant which was received by the complainant without checking as the complainant was in hurry. After reaching the home, the complainant checked the jobsheet that contains a clause it is out of warranty. The mobile set was purchased on 18.12.2013 and warranty period of the said mobile is still going on. On the next day, the complainant approached the employees of service station and asked the reason for writing such type of words but no satisfactory answer was given by the employees of OP3. The complainant asked the OP3 when his mobile is available after repair, then they told that they are unable to repair the said mobile handset and further asked the complainant to pay Rs.11,500/- and they will provide new mobile handset of the same model but without warranty. Complainant immediately requested him that at the time of purchase of the said mobile, the OP1 assured the complainant that mobile handset was having one year warranty including damage warranty of screen and within one year, the company is liable to repair the said mobile handset but now Ops are clearly refusing to repair the handset or to give the new mobile set which they are legally bound to do so, on the other hand, Ops are demanding more amount from the complainant to give him a new mobile handset. Thereafter, the complainant approached with OP2 and OP3 with his grievance but with no result. The complainant served a legal notice dated 18.10.2014 upon the Ops which was duly received by them but they failed to do the needful. Such act and conduct of Ops is claimed to be deficiency in service on their part by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, earlier Sh.Gagandeep, ASC Manager on behalf of Op3 had appeared and filed his authority letter, whereas, despite service through notice, OP1 failed to appear and was proceeded against ex-parte vide order dated 05.12.2014 by this Forum, whereas, notice of the complaint was sent to OP2 through registered post on 26.11.2014, but the same was not received back and as such, after expiry of 30 days of period, Op2 was proceeded against ex-parte vide order dt.17.12.2014 by this Forum and OP3 also failed to appear and was proceeded against ex-parte.  

4.                When the case was fixed for ex-parte evidence of the complainant, an application for setting aside the ex-parte order dated 17.12.2014 against OP2 was filed by Sh.Rahul Pathak, Advocate which was allowed vide order dated 8.1.2015 by this Forum.

5.                OP2 filed the written reply, in which, it has been submitted in the preliminary objections and submissions that as per the records of the company , the complainant had purchased a Sony Xperia ZR, bearing Model No.C5502 on 18.12.2013 after a detailed demonstration of the features, functions, applications by the OP1 and after satisfying himself with the condition of the mobile phone. The answering OP provides a 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. A copy of warranty terms provided by the answering OP to the complainant which provides that if during the warranty period, the 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 to repair or replace the product in accordance with the conditions stipulated herein. Furthermore, clause 3 of the terms of warranty provided by the answering OP to the complainant clear states that 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. The terms of the warranty therefore, are clearly not applicable in cases where the product has been externally damaged by the complainant due to activities such as damage caused by accident or any other external cause which is beyond the control of the answering Op. The complainant after enjoying the subject mobile admittedly without any sort of defect for the period of almost 3 months approached the authorized service centre i.e. OP3 for the very first time on 29.3.2014 raising the issue of “other application problem/other camera/video/picture problem”, however, on being inspected the software of the subject mobile handset was duly upgraded which was collected by the complainant on the very same day with his entire satisfaction. The complainant again approached the OP3 on 10.6.2014 with issues of “Camera/Video/Picture Problem”, however, the subject mobile was again upgraded with the latest software which was collected by the complainant on the same day itself. Complainant again after almost 4 months approached the OP3 for third time, by raising false some issues in the subject mobile, however, upon its physical inspection, the display of the subject mobile phone was found to be cracked due to its negligent use by the complainant which was duly demonstrated to the complainant by showing the cracked screen thereof. In such a condition, the subject handset could not be covered under the warranty terms, as the same was damaged due to its negligent use by the complainant. It was further explained by the answering OP that the repair of the subject mobile phone would be carried out only on chargeable basis, therefore, the estimate of 50% of the MRP was given to the complainant for factory refurbished handset in exchange. However, the complainant refused to approve and offered estimated and pressurized the answering OP for free of cost replacement with a new mobile phone which was contrary to the terms and conditions agreed upon. Moreover, as a goodwill gesture towards their customers, the answering OP during the pendency of the complaint, vide its letter dated 3.12.2014 offered the complainant a new handset at the special discount of 50% on the MRP in exchange with the mobile in question with standard packing without accessories. However, the complainant being an adamant person did not agree to any of the above noted offers. The complainant has not annexed any report of an independent expert as defined u/s 2(1)(a) of the Consumer Protection Act, 1986 with regard to any alleged defect in the said unit. No cause of action has ever arisen in favour of the complainant and against the answering OP. At the end, denying all other allegations levelled by the complainant against the answering OP being wrong and incorrect, answering OP made prayer for dismissal of the complaint with costs.

6.                In order to prove the case of complainant, learned counsel for the complainant tendered into evidence affidavit of complainant as Ex.CA, in which, he has reiterated all the contents of the complaint. Further, learned counsel for the complainant has proved on record documents Ex.C1 to Ex.C6.

7.                On the other hand, learned counsel for OP2 tendered into evidence, affidavit of Priyank Chauhan, its authorized signatory as Ex.RW1/A, in which, he has reiterated all the contents of the written reply filed by the OP2 and rebutted the case of the complainant. Further, learned counsel for the OP2 has proved on record documents Ex.RW1/1 to Ex.RW1/5.

8.                We have heard the learned counsel for the complainant as well as learned counsel for the OP2 and have also gone through the documents on file very carefully.

9.                Admittedly, the complainant had purchased the mobile in question i.e.Sony Xperia ZR/BLK vide bill No.RI 5370 dated 18.12.2013 from OP1 for an amount of Rs.25,500/- which is evident from copy of bill Ex.C1. It is proved fact on record that after the purchase of the mobile handset in question, the complainant has faced the problems in mobile as the screen of the mobile of the complainant was got cracked and the same was not working properly and the complainant had approached the OP3 for repair of the same and handed over the mobile set in question for repair which fact is evident from document Ex.C2 copy of Service Job Sheet dated 13.10.2014 issued by Op3 to the complainant mentioning the defect description as “Touch not working and front damaged” . As per the allegations of the complainant that OP1 failed to repair or replace the handset in question despite his repeated requests and various visits. Further, as per the allegation of the complainant that the mobile in question is under the warranty of having one year from the date of its purchase.

10.              Though, learned counsel for the OP1 has not denied the plea taken by the complainant. However, he has taken the plea that front mobile screen of the mobile handset of the complainant was damaged which is a physical damage and which is not covered under the warranty and repair of mobile screen is on chargeable basis. However, learned counsel for the OP1 has failed to adduce any cogent and convincing evidence and documents on record in order to prove his respective plea. Since, it is proved fact on record that mobile handset of the complainant has not been repaired by the OP3 and the mobile in question is within the warranty period when the same was given to the OP3 for repair by the complainant which fact is evident from copy of document Ex.C2 and Op2 has failed to produce on record any document in order to rebut this plea of the complainant. So, the complainant is entitled for the repair of the mobile handset in question from the Ops without any costs.

11.              Though, the complainant has made prayer for replacement of the mobile handset in question. However, it is a well settled principle of law that untill and unless, there is opinion of the expert qua the fact that the product suffers from the manufacturing defect, relief qua replacement cannot be granted in favour of the consumer. Further, the complainant has failed to prove on record any expert opinion to prove the fact that his mobile suffers from any manufacturing inherent defect. However, the complainant is entitled for the repair of the mobile handset in question by repairing or replacing the defective parts of the same and the Ops are liable to do the same. However, since it is a proved fact on record that due to non-working of the mobile handset of the complainant, the complainant has failed to use the mobile in question, which he had purchased for his personal use. Thus, Ops are proved to be deficient in rendering proper services.

12.             In view of the above discussion, by allowing this complaint, we direct OPs to carry out the necessary repair in the mobile handset of the complainant even by replacing the defective parts of the same upon the entire satisfaction of the complainant and make the mobile handset of the complainant proper functional without any defect in the same without charging any costs and in case, it is found that there is an inherent defect in the same and the same is not repairable by carrying out the necessary repair, to replace the same with new mobile handset of same make and model without any further costs or in the alternative, to refund the entire amount of the same to the complainant. Further, Ops are directed to pay compensation and litigation costs compositely assessed as Rs.4000/-(Four thousand only) to the complainant on account of mental pain, agony and harassment suffered by him. Order be complied within 30 days from the date of receipt of copy of this order. Copies of the order be sent to the parties free of cost and thereafter, file be consigned to the record room.

 

(Babita)                          (Sat Paul Garg)              (R.L. Ahuja)

 Member                                    Member                         President

Announced in Open Forum

on 27.02.2015

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