BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.93/2016.
Date of Instt.: 17.03.2016.
Date of Decision: 07.06.2017.
Jaswinder Son of Mohan Singh resident of Dhani Lamba Tehsil Ratia District Fatehabad.
..Complainant
Versus
1.M/s Hari Om apple 4 you# 99 Devi Lal Market Ratia 125051 Haryana Mobile 93655852999, 7357611111.
2. Kamal Enterprises 93-Naryana Complex Near Sharda Hospital Gurudwara Road, Model Town Hisar-125001 Haryana 99969020000/0166250373.
3.Sony Gurgaon Branch Office U/1 VRI Center IInd Floor Plot No.83 Sector 29 City Center Gurgaon, Haryana Pin No.1220022 Mobile No.0124-4896200.
..Opposite Parties.
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal,Member.
Smt. Ansuya Bishnoi, Member.
Present: Complainant in person.
Sh.Dayanand Siwach, Advocate for OP No.3.
Opposite parties No.1 & 2 exparte.
ORDER
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Brief facts of the present complaint are that complainant had purchased a mobile of Sony Company model Galaxy Xperia M5 bearing IMEI No.352191070646964 for a sum of Rs.34,990/- on 14.09.2015 from OP No.1 vide bill No.5196. The handset was having one year full warranty but it went out of order within one year, therefore, the complainant had visited OPs No.1 & 2 many a times but they refused to repair the same. It has been further averred that the complainant had deposited handset with Op No.2 but it demanded Rs.8,000/- for getting the same repaired and harassed him. The complainant sent legal notice upon the OPs but to no avail as the OPs had delivered the handset set without repairing the same. The act and conduct of the Ops clearly amounts to deficiency in service. In evidence the complainant has tendered his affidavit Ex.PW1/A and documents Annexure C1 to Annexure C4.
3. Upon notice, only Op No.3 appeared and contested the complaint by filing its reply as OP Nos.1 & 2 have failed to appear before this Forum despite issuance of notice, resulting into their exparte. OP No. 3 in its reply has submitted that as per record the complainant had purchased one Sony Xperia M5 Dual/D5663 with IMEI No. 352191070646964 on 14.09.2015 for a sum of Rs.34,990/- from OP NO.1 and the limited warranty on the product was for one year. The relevant terms of warranty provided to the complainant is a under:
“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”.
“This warranty does not cover any failure of the product to the 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 has been further submitted that the complainant had approached the OP no.3 on 11.01.2016 with issue of display but it had attended the complainant without any delay and after inspection of the mobile it was found that damage to the handset had occurred due to liquid ingression. It has been further submitted that the handset was roughly used, therefore, liquid had entered in the set. Since liquid ingression is beyond the warranty, therefore, an estimated cost for repair was shared to the complainant which was rejected by him. It has been further submitted that the handset was required proper analysis test but the complainant has failed to do so as there is no expert evidence on the case file. It is denied that there was any manufacturing defect in the handset. Other allegations made in the complaint have been controverted. OP No.3 has prayed for the dismissal of the complaint. In evidence the OP No.3 has tendered affidavit of Sh.Priyank Chauhan as Mark 1.
5. We have heard learned counsel for the complainant and learned counsel for the OP No.3 and have perused the case file carefully.
7. Purchasing of mobile by the complainant from OP No.1 on 14.09.2015 (Annexure C-1) is not disputed. It is also not disputed that the handset was having full warranty of one year and the handset went out of order during the period of warranty period. The grievance of the complainant is that the Ops neither repaired the set nor replaced the same with new one nor refunded the cost thereof. It is not disputed that he had to visit service centre for getting the handset repaired as is admitted by the OP No. 3 in its reply. Learned counsel for the OP No.3 has argued that the mobile handset was liquid damage therefore, it was out of warranty period and the OPs are neither liable to replace the same nor liable to refund the cost thereof. The plea taken by the OP No.3 that the mobile hand set was liquid damage is not tenable as it is not supported by any credible and authentic evidence. Moreover, it is misconceived notion that any goods can be ordered to be replaced or the cost can be ordered to be refunded only if it suffers from manufacturing defect/liquid damage because there is no such concept of goods suffering from manufacturing defect enshrined by the provision of Consumer Protection Act. Consumer Protection Act only defines the word ‘defect’ by way of Section 2 (1) (f) of the Act which is to the following effect:
“Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods.”
In the present case it is established that the handset is liquid damage as per inspection carried out by engineer of OP No.3, therefore, there is every possibility that it might have been written in order to avoid the liability, therefore, the Ops are ceased to raise such plea. From the above mentioned facts and circumstances, it is clearly established that the OP No. 2 & 3 are deficient in providing service and have failed to redress the grievance of the complainant as per his satisfaction. There is enough on the record that the set in question went out of order within warranty period and the complainant has been able to prove deficiency in service on the part of the OP Nos.2 & 3 as they failed to remove the defect in the mobile during the warranty period. Since there is no specific allegations against the OP No.1 and even it has no role to play in the dispute, therefore, complaint against OP No.1 stands rejected.
7. Thus, as sequel to our above discussion, we partly allow the present complaint and direct the OP Nos.2 & 3 to refund the cost (Annexure C1) of the mobile to the complainant. We also direct the opposite parties No.2 & 3 to pay a sum of Rs.2000/- as compensation to the complainant for harassment including litigation expenses. The opposite party no.1 i.e. dealer is exonerated from any liability. The complainant is directed to deposit the mobile handset along with its components/accessories, if any, with the Ops. Order of this Forum be complied within a period of 30 days. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
Announced in open Forum. Dated:07.06.2017
(Raghbir Singh) President
District Consumer Disputes
Redressal, Forum, Fatehabad.
(Ansuya Bishnoi) (R.S.Panghal)
Member Member
