Assam

Dibrugarh

CC/19/2013

MISS NAMRATA KASHYAP - Complainant(s)

Versus

M/S MANGALAM - Opp.Party(s)

SRI SUBARTA SHOME

15 Nov 2017

ORDER

The case of the complainant in brief is that, the complainant purchased one mobile handset of Sony brand, model ST-21i2 at the price of Rs.9900/- from the OP No.1 and on the same day OP issued a cash memo No.6628 dated 07-01-13 alongwith a warranty covering the period of twelve months from the date of purchase. After few days of purchasing the said mobile handset was found to be manufacturing defect and started fiving problem which was not expected from a brand new mobile handset and that too from a reputed company like Sony. The complainant reported the matter to OP No.1 on 18.04.13 and told him regarding the deffect and the problems faced by the complainant. The OP No.1 kept the mobile in his custody saying that he will get it repaired on the next day and asked the complainant to come on the next day to collect the mobile. Accordingly, the complainant on 19.04.13 visited to the shop of OP, but OP returned the mobile set to the complainant without repairing saying that mobile handset is not in a repairable condition and handed over a document showing deposit and return of mobile handset. Knowing the above fact the complainant requested the OP No.1 to replace a new mobile handset as because, it was within the warranty period but the OP flatly refused to comply the request of the complainant. The complainant visited several times to shop of the OP No.1 requesting him to return the price of the mobile handset or to replace a new one but the OP did not pay any heed to her request. As a result of which the complainant suffered a lot of physical and mental torture since the mobile handset was within the period of warranty period from its purchase. By not replacing a new mobile or not returning the price of the mobile, the OP has committed deficiency in service and therefore the entire act of the OP was highly arbitrary, illegal and abuse of the process of law. The act of the OPs were out and out deficiency in service due to their negligence for which the complainant suffered immense loss, torture, harassment and agony. Hence, the complainant filed this case claiming replacement of the mobile handset in place of old one or to return the price of Rs.9900/- of the mobile handset with interest, Rs.10,000/- as compensation for mental agony and harassment and the cost of the case.

 

After registering the case, notices were issued to all the OPs. Only OP No.1 have contested the case by submitting written statement, evidence and argument. After receiving the notice issued to OP No. 2,3 and 4 they were represented on 15.05.15 and filed petition with request to allow another date for filing written statement  but subsequently, they remained absent without contesting the case either by filing written statement or by evidence. Hence, the case against them proceeded exparte.

 

The OP No.1 while filing the written statement stated inter-alia that the case is not maintainable in law as well as in fact. The OP No.1 admitted that the complainant had purchased mobile handset of Sony brand from the OP No.1 on 07.01.13 and thereafter cash memo and warranty card were issued. Further, the OP admitted that the complainant visited the shop of the OP No.1 on 18.04.13 with a complaint of defect of the mobile handset. The OP No.1 kept the said mobile handset and assured to repair the same and asked the complainant to come on the next day to collect the handset. The OP No.1 further stated that the mobile handset of the complainant was sent to the service centre at Dibrugarh as per work order No.W113041901446 dated 19.04.13 but the service centre after proper verification and examination of the mobile handset returned the same commenting that due to mishandling the HW part/unit was damaged by liquid / corroded and same could not be repaired. Hence, the service centre returned back the mobile handset without repairing and the same handset was handed over to the complainant with due receipt of documents stating that the handset is not reparable condition owing to the damage caused by liquid/corroded and the same cannot be repaired because the damage was caused by liquid which is not covered under warranty and the OP is not entitled to replace or return the price of the same. The OP No.1 further submitted that the mobile handset is repairable by changing some of its major parts such as main board and task panel. But the complainant has to pay the cost of the said parts to make the mobile serviceable because the damage which is caused by liquid is not covered under warranty. As such,  the OP No.1 is not bound either to return the price of the mobile handset or to replace the same with a new one. The OP No.1 further stated that  he is not responsible at all for the above damage. It has been specifically mentioned in the cash memo that “no service issue will be entertained by the dealers, please contact nearest service centre.” The complainant had to report to the service centre during the warranty period and not to OP No-1. There is no deficiency of service on the part of the OP No.1 being the dealer of the Company and other OPs such as Sony Company and service centre are not liable  as the defect is not covered under the warranty. Hence, the OP No.1 prayed to dismiss the case.

 

 

        In this case Complainant gave evidence by swearing affidavit and exhibited 2 (two) documents in support of the case. On the other hand, OP examined one Sri Santosh Kejriwal, partner of M/s. Mangalam as DW-1 and exhibited one document to rebut the case of the complainant.

Complainant and OP No.1 submitted their written argument.

 

DISCUSSION,DECISION AND REASONS THEREOF:

 

Upon going through the evidence, documents and the argument advanced by both the parties, it has been found that the complainant had purchased a mobile handset of Sony brand, model ST-21i2 at the price of Rs.9900/- from the OP No.1 and OP No.1 on the same day issued a cash memo No.6628 dated 07-01-13 alongwith a warranty covering the period of twelve months from the date of purchase. Since the mobile handset was not functioning properly and started giving problem which was not expected by the complainant from a new mobile that too from a reputed company like Sony, the complainant reported the matter with OP No.1 on 18.04.13 and told him regarding the defect and the problem faced by the complainant. OP No.1 kept the mobile handset saying that he will return the same on the next day after getting repaired. Accordingly, the complainant on 19.04.13 visited to the shop of the OP but the OP informed to the complainant that the handset is not in repairable condition and returned the same to the complainant. The  OP in their written statement admitted the above fact but alleged that after getting the mobile handset from the complainant it was sent to their service centre at Dibrugarh as per work order No.113041901446 dated 19.04.13, but the service centre after proper verification and examination of the mobile handset returned the same to OP No.1 by commenting that due to mishandling the HW part/unit was damaged by a liquid/corroded and same could not be repaired. Hence, the service centre returned back the mobile handset without repairing. As such, the handset was handed over to the complainant. According to OP the handset is not repairable condition owing to the damage caused by liquid / corroded and the same cannot be repaired because the damage was caused by liquid, which is not covered under warranty. As such, the OP is not entitled to replace or return the price of the mobile. The OP No.1 stated that he is not responsible at all the for the above damage because the damage was caused by mishandling of the complainant.

 

Under the fact and circumstances stated above it is now to be considered whether the allegation made by the OP of mishandling of mobile handset by the complainant has been proved, and so the complainant is not entitled to get the benefit under warranty.

 

From the evidence on record it is found that while the mobile handset was not functioning properly. The complainant approached before the OP No.1 on 18.04.13 and OP No.1 kept the said mobile handset with an assurance to handover the same to the complainant after being repaired. Accordingly, OP No.1 sent the handset to the service centre but the service centre after proper verification and examination, of the mobile handset returned the same to the OP No.1 commenting that due to mishandling the HW part/unit was damaged by liquid/corroded and same cannot be repaired. Hence, the service centre returned back the handset without repairing. Whether the above allegation of OP are acceptable. Mere making an allegation in written statement and evidence is not sufficient, it must be proved. The vague allegation of the OP could not safely be taken to prove the contention raised in that regard and considering the material on record. The above contention was not supported by any documents to show their version as true as there is nothing to show any document. The terms and conditions of Sony Mobile Company that a new mobile handset cannot be replaced by a new one during the period of warranty if the same is damaged due to misbehaving, HW part/damage by liquid /corroded even though covered by warranty. Simply by making such a vague statement made by the OPs cannot be discharged their liability and shifted their liability to the complainant without any valid evidence. Basing on proper appraisal of the material on record we do not find any merit to agree with the view of the OPs. The defect found in the mobile handset which is a manufacturing defect and the same are not repairable and cannot be cured. The defect found in manufacturing in the mobile handset within the term stipulated in warranty obligation, then obligation of the company is  to  replace or return the price with interest.

 

It was examined by the expert and employee of the service centre and as per their version the mobile handset was un-repairable which was verbally informed to the OP but though the allegation was made  by the OP No.1 regarding the mishandling but it was failed to prove by producing relevant documents or by the opinion of expert. As such, the vague allegation made by the OP cannot safely be taken to prove the contention raised in this regard and considering the material available on record.

 

While arguing the case by the OP No.1 it was stated that OP No.2, the Sony Company desired to settle the matter with the complainant. But the OP No.2 in the name of settlement lingered the matter and ultimately the matter was not settled by the OP No-2. It appears from the argument the authorised persons of OP No.2 alongwith OP No.1 verbally assured the complainant to settling the matter and will change the mobile set but in fact the OP No.2 failed to settle the same with the complainant for long time. From the foregoing argument set forth by the OP No.1 it clearly established that there was manufacturing defect of the mobile in question. The defect was found within the warranty period. As such, it was the duty on the part of the OPs to replace or return the price of the mobile handset.

 

However, from the over all examination of complainant’s evidence and the evidence and argument of OP we are satisfied that this is a case of manufacturing defect in the mobile handset. The reason being that the OP No.2 agreed to replace the defective handset by a new one but the same was not settled for a reasonable time for the reasons known to the OP.

 

In view of the above fact and circumstances and the evidence it is found that there is a manufacturing defect with the mobile handset which cannot be repaired and cannot be cured. The service centre has categorically stated that the mobile is not repairable. Under the circumstances, the manufacturing defect of the handset has been proved and as such, all the OPs are held jointly and severally liable for the defect. Consequently, they are directed to replace the mobile handset of similar description which shall be free from any defect along with warranty, failing which they shall refund Rs.9900/ along with interest @ 12% per annum on the amount with effect from 07.01.2013 till the date of realisation. Further, all the OPs are held jointly and severally liable for payment of Rs.5000/-as compensation for causing undue harassment and mental torture alongwith cost of litigation which we quantify at Rs.2000/-. All the amount ordered above shall be paid to the complainant within one month from the date of this judgment through this Forum.