Per:- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 – Company; is the manufacturer of Sony-Ericsson mobile handsets, whereas the Opposite Party No.2 is the authorized agent providing service for the Opposite Party No.1 – Company; as per the warranty of the instrument. The Opposite Party No.3 is a dealer of Sony-Ericsson mobile handsets. [2] The Complainant purchased a Sony-Ericsson mobile handset bearing Model No.K-300i on 23/3/2006 from the Opposite Party No.3 – Dealer; for sum of Rs.6,050/-. There was a warranty of one year to the said mobile handset. There was problem with the mobile handset and the Complainant approached the Opposite Party No.3 – Dealer; and the Opposite Party No.3 – Dealer; represented that it was a defect of service network and not defect in the mobile handset. [3] According to the Complainant, he had been to Bangalore on 12/5/2006 and suddenly his mobile handset became non-operational. On returning to Mumbai on 14/5/2006, the Complainant approached the Opposite Party No.3 – Dealer; with the said defective mobile handset and requested for repairs/ replacement. The Opposite Party No.3 – Dealer; refused to undertake the repairs and directed the Complainant to approach the Opposite Party No.2 – Authorized Service Centre of the Opposite Party No.1 Manufacturing Company. Accordingly, the Complainant approached the Opposite Party No.2 – Service Centre; on 15/5/2006 and deposited the mobile handset for repairs. On the next day, when the Complainant visited the Opposite Party No.2 – Service Centre; for collecting the mobile handset, he was represented by the Opposite Party No.2 – Service Centre; that it was ‘Liquid Damaged’. The Complainant refuted these allegations. The Opposite Party No.2 – Service Centre; on the other hand demanded exorbitant amount for repairs of the mobile handset. The Complainant thereafter, served notice dtd.26/5/2006 on the Opposite Parties No.2 & 3, followed by several telephone calls. However, his mobile handset was not repaired or replaced by the Opposite Parties No.2 & 3. Ultimately, the Complainant filed present complaint for recovery of sum of Rs.6,050/- together with interest thereon @ 24% p.a. In addition to that the Complainant has sought recovery of sum of Rs.1,171.80ps., from the Opposite Parties since he was required to keep his Airtel connection alive and was required to make payment of this sum to that Company. According to the Complainant, he felt serious inconvenience & hardship on account of absence of mobile handset and he has claimed compensation in sum of Rs.25,000/- from the Opposite Parties. [4] The Opposite Party No.1 – Manufacturing Company; has its head office at Sweden and it could not be served by the Complainant. [5] The Opposite Party No.2 – Authorized Service Centre of the Opposite Party No.1 Manufacturing Company; on appearance filed its written version and took stand that on 15/5/2006, when the Complainant approached the Opposite Party No.2 with a mobile handset. On preliminary inspection, it was found that the handset was subjected to water because of which, it was ‘Liquid Damaged’. Battery of the handset was returned to the Complainant since it was not corroded. The Opposite Party No.2 asked for cost of repairs as those parts were not easily available. Accordingly, the handset was repaired by the Opposite Party No.2. However, the Complainant did not approach the Opposite Party No.2 to collect the mobile handset. In the meantime, the Opposite Party No.2 had approached the Opposite Party No.1 – Manufacturing Company; for extension of three months warranty, which was not extended. Thus, according to the Opposite Party No.2, there was no deficiency in service on its part. [6] The Opposite Party No.3 – Dealer; filed separate written version and according to the Opposite Party No.3, there was condition printed on the bill, which reads as follows:- “WARRANTY SHOULD BE CLAIM AT COMPANY’S SERVICE CENTRE AS PER THEIR TERMS & CONDITIONS FROM THE FIRST DATE TO LAST.” [7] As per that condition in the bill, the Complainant was referred to the Opposite Party No.2 – Service Centre. Thus, according to the Opposite Party No.3 – Dealer; as per condition in the bill, it was not liable for repairs or replacement of the mobile handset. [8] The Complainant filed his affidavit of evidence. The Opposite Party No.3 – Dealer; also filed its affidavit of evidence alongwith written version. The Complainant filed his rejoinder to both the written versions. The Complainant as well as the Opposite Parties No.2 & 3 filed copies of documents, particularly the bill and letter issued by the Opposite Party No.2 – Service Centre; to the Complainant. [9] We have gone through the pleadings, affidavits, rejoinder and documents filed by the parties to the complaint proceeding. [10] We have heard the learned advocates representing the parties to the complaint proceeding. [11] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that there was defect in the mobile handset and thus, there was deficiency in service on the part of the Opposite Parties? | YES | 2. | Whether the Complainant is entitled for claim refund of price of the mobile handset or its replacement? | The Complainant is entitled for replacement of mobile handset. | 3. | What order? | The complaint is partly allowed. |
REASONS FOR FINDINGS [12] There is no dispute about the fact that the Complainant purchased a mobile handset of Sony-Ericsson Company from the Opposite Party No.3 – Dealer; for sum of Rs.6,050/-, vide invoice dtd.23/3/2006, a copy of which is produced on the record at Exhibit-1 of the compilation of the complaint. On the invoice itself a condition has been printed that the warranty should be claimed at the company’s service centre. The period of warranty was for one year. Defects were noticed within three months from the date of purchase and the Complainant approached the Opposite Party No.3 – Dealer; who as per the printed condition on the invoice, directed the Complainant to approach the Opposite Party No.2 – Service Centre. We do not find any error on the part of the Opposite Party No.3 – Dealer; in directing the Complainant to the Opposite Party No.2 – Service Centre; because it was on the basis of condition printed on the invoice. There is also no dispute as regards the fact that the Complainant approached the Opposite Party No.2 – Service Centre; for repairs of the mobile handset and the mobile handset was collected by the Opposite Party No.2 – Service Centre; for repairs and the battery of the mobile handset was returned to the Complainant. According to the Opposite Party No.2 – Service Centre; the Complainant did not turn up to collect the mobile handset till 15/10/2006. It appears that in the meantime, the Complainant was insisting for extension of warranty period as well as extension of the conditions from the date of redelivery of the mobile handset by the Opposite Party No.2 – Service Centre. We find support to this contention from the averments in the complaint because in paragraph No.(23) of the complaint application, the Complainant has averred that he agreed to bring an end to the matter, but the Opposite Party No.2 – Service Centre; refused to give an extension of warranty, and therefore, the Complainant did not accept the offer from the Opposite Party No.2 – Service Centre; and filed the present complaint. Thus, the written versions filed by the Opposite Parties No.2 & 3 show that there was defect in the mobile handset and the said mobile handset was collected by the Opposite Party No.2 – Service Centre; and was repaired. According to the Opposite Parties No.2 & 3, the mobile was ‘Liquid Damaged’. However, the battery of the said mobile handset was not damaged and the Complainant has deposited the same with the Forum. The Opposite Parties No.2 & 3 have not produced on the record any evidence to show that the handset in question was ‘Liquid Damaged’. In absence of such evidence, the Complainant’s contention that there was defect in the mobile handset is required to be accepted. [13] Coming to the question of grant of relief to the Complainant, we find following statement in paragraph No.(09) of the written version filed by the Opposite Party No.2 – Service Centre; which reads as follows:- “I submit that the opposite party’s Delhi Office informed the complainant to take the replacement of his defective mobile from their Mumbai office. The Opposite party No.2 admits that it was informed by their Delhi office to replace the defective handset as it is a special case. Therefore the Opposite party No.2 decided to offer the complainant an upgraded model which was ready at their Mumbai office for delivery. However for the reasons best known to the complainant, the complainant has not collected the same nor has bothered to come back to take his defective piece and instead decided to proceed with present complaint.” [14] Purportant text of the above-referred averments in the written version show that the Opposite Party No.2 – Service Centre; had contacted its superior office to bring an end to the matter and the superiors of the Opposite Party No.2 – Service Centre; referred to as ‘Delhi Office’ had suggested the Opposite Party No.2 – Service Centre; to replace the defective mobile handset as a special case. This shows that the Opposite Party No.2 – Service Centre; had agreed to replace the mobile handset by retaining the old defective mobile handset. In order to bring an end to the matter, we also find that it would be practicable to direct the Opposite Party No.2 – Service Centre; to replace the old defective mobile handset with a new mobile handset of the same model. If, the same model has become out of date or out of production then, the Opposite Party No.2 – Service Centre; shall replace the same with an upgraded model. [15] As regards the warranty period, it appears that vide an e-mail dtd.22/8/2006, sent by Customer Support of the Opposite Party No.1 – Company; the company had agreed to replace the old defective mobile handset and had also agreed to extend the period of warranty by three months from the day when one year warranty expires. Same conditions as regards the warranty shall be attached to the new mobile handset to be replaced by the Opposite Party No.2 – Service Centre. [16] Coming to the question of award of compensation, the Complainant has claimed compensation in sum of Rs.25,000/- from the Opposite Parties. According to the Complainant, he handed over the mobile handset to the Opposite Party No.2 – Service Centre; on 15/5/2006. Thereafter, there was correspondence between the parties. The Complainant filed the present complaint before this Forum on 14/2/2008 i.e. almost after 19 months of the return of mobile handset to the Opposite Party No.2 – Service Centre; for repairs. According to the Opposite Party No.2 – Service Centre; the Complainant did not collect the mobile handset. Last correspondence between the parties is dated 22/8/2006, which was communication sent by the Complainant to the officer of the Opposite Party No.1 – Company. Thus, the Complainant kept quite for 18 months and thereafter, lodged present complaint. This militates to the contention of the Complainant about serious inconvenience and hardship allegedly experienced by him. Compensation is to be awarded to recompense the inconvenience and hardship caused to the consumer. In the present case, that does appear to be a situation. It is possible that the Complainant in the meantime might have gone for another mobile handset or might have made some alternate arrangement. Therefore, we are not inclined to award compensation to the Complainant. In the result, we proceed to pass the following order:- ORDER The complaint is partly allowed. The Opposite Party No.2 is hereby directed to replace old defective Sony-Ericsson mobile handset bearing model No.K-300i supplied to the Complainant by giving a new mobile handset of same model to the Complainant. It is made clear that if the said model has gone out of production, the Opposite Party No.2 shall replace the mobile handset by an upgraded model. The Opposite Party No.2 shall issue warranty as per the same conditions, which were prevailing for the old defective mobile handset. The Opposite Party No.2 shall also pay costs in sum of Rs.1,000/- to the Complainant. The Opposite Party No.2 shall comply with the foregoing order within a period of four weeks from the date of receipt of this order. Rest of the claims of the Complainant stands rejected. The complaint, as against the Opposite Parties No.1 & 3, stands dismissed.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | | 
