BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.37/2016

Dated this the  19^th  day of June 2017

(Date of Institution: 01.09.2016)

Anbazhagan, son of Rajasekar              

No.67-A, vivekanandha School Street

Sellaperumalpet, Lawspet,

Pondicherry – 605 008.     

                                                ….     Complainant

Vs.

1. M/s Sony India Private Limited

    A-31, Mohan Co-operative Industrial Estate

    Mathura Road, New Delhi – 110 044.

2. M/s Intouch Services

    Sony Authorised Service Centre

    No.178, 1^st Floor, Lal Bahadur Shastri Street

    (Bussy Street), Pondicherry – 605 001.

3. M/s Century Cellcom

    No.156, S.V. Patel Salai,

    Puducherry – 605 013.

                   .                                     ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Thiru S. Saravanan, Advocate

FOR THE OPPOSITE PARTIES:          :  Exparte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under Sections 12 (1) (a) and 13 (1) & (2) r/w 13 (c) and (d) of the Consumer Protection Act, 1986 praying to direct the opposite parties to immediately rectify the defective Mobile or replace the same with a new Mobile phone or refund a sum of Rs.40,000/- with interest at the rate of 18% per annum from the date of purchase till full discharge;  direct the opposite parties to pay compensation of Rs.2,50,000/- towards Physical hardship, mental agony and monetary loss to complainant and direct the opposite parties to pay Rs.10,000/- as costs of proceedings to the complainant. 

2.  The case of the complainant is as follows:

The Complainant is running a canteen under the name and style of “Hotpan catering Service” inside Bharathidasan Women Government College at Puducherry.     In need of a Mobile phone for his personal and professional purpose approached third opposite party.  The third  opposite party suggested to purchase Sony Xperia Z3 Model: E6553 manufactured/Imported by the first opposite party assuring its quality and functioning.  The Third opposite party assured that the mobile phone is water proof model.  On assurance given by OP-3 the complainant purchased the mobile phone on 13.10.2015 vide Invoice No: 269/2014-15 on payment of a sum of Rs.40,000/- by availing loan and the full installment amount is paid by the complainant.  The complainant stated that despite his best care and maintenance of the Mobile phone as per OP3 instructions, within two months time of his purchase form OP No.3, said phone started Malfunctioning.  The product was purchased by him for many and varied usages promised by the OP No.1&3.  Due to said malfunctioning and consequent inability to use to the phone complainant's day to day communication and work is hauled.  Thus complainant unable to bear with malfunctioning of the phone and physical mental and monetary loss caused thereby approached the OP1 & 3 on 09.12.2015, 11.02.2016, 12.02.2016 to 29.02.2016,29.02.2016 to 02.04.2017, 04.04.2016 to 07.05.2016 and 07.05.2016 upto till date complaining the same.  OP No.2 very sympathetically listened to complainant and affirming malfunctioning of the product assured complainant that said malfunctioning shall be rectified by the OP No.1 being an authorized service agent of the first and third opposite party for said product free of cost as the same was inherently defective.  However still the phone is not functioning properly.  Complainant further stated that due to his inability to use the phone to its purpose he is put to sever physical hardship and suffering mental agony and monetary loss.  The complainant was constrained to send said a legal notice on 13.05.2016 and receipt of complainant notice on 14.05.2016.  That said notice was received by the OP Nos.2 and 3 on 17.05.2016.  First and second opposite party is received the complainant legal notice and reply notice issue to the complainant on 24.05.2016.    Hence this complaint.  

3.       The opposite parties remained absent and set exparte.

4.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C15.

5.  Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite party attributed any negligent act leading to deficiency in service?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant purchased one SONY Brand, Xperia Z3 Model: E6553 vide invoice No. 269/2014-15 with warranty for Rs.40,000/- on 13.10.2015 from the third Opposite Party vide Ex.C1.  Hence, the complainant is the consumer.

7.       Point No.2:

          The complainant was examined as CW1 and marked Exs.C1 to C15.  The Opposite Parties were duly served, but called absent and set ex parte.  The complainant submitted that he has purchased one SONY Brand, Xperia Z3,  Model: E6553 from the third Opposite Party for Rs.40,000/- on 13.10.2015 vide Ex.C1.    The complainant further alleged that he purchased the said mobile by availing loan from Bajaj Fivserv and also he has completely paid the loan amount vide the statement of Account Ex.C2.  The complainant further stated that within two months from the date of purchase, the cell phone has started malfunctioning and hence, he handed over the cell phone to the second opposite party who is the Authorised Service Agent of first opposite party who is the manufacturer of alleged cell phone on various dates i.e. 27.10.2015, 02.11.2015, 27.10.2015, 03.02.2016, 03.03.2016, 29.02.2016 and 04.04.2016 for the alleged complaints of  No display, Hanging, Heating and no power etc vide the job sheets Exs.C3 to C9.  Since the defects were not rectified by the second opposite party, the complainant issued a legal notice dated 13.05.2016 vide Ex.C10, the same was acknowledged by the opposite parties vide Ex.C12 and Ex.C13.  The complainant received a letter from Sony India Pvt Ltd., Chennai  refusing to refund the purchase value or to replace the product vide Ex.C14 and Ex.C15.  Hence, the complainant came to this Forum with this complaint.

8.       From the above facts and evidence adduced by the complainant, it is clear from Ex.C1 that the complaint alleged mobile phone was purchased by the complainant from the third Opposite Party on 13.10.2015 for Rs.40,000/-.   On perusal of Ex.C2, the complainant availed loan  from a Finance company for the purpose of purchase of said cell phone and also repaid all the dues.  On perusal of Exs.C3 to C9, the Job Sheets issued by the second Opposite Party, it is found that the said mobile phone covers the warranty period and it had lot of recurring defects on various occasions.     Since the purpose for which the mobile phone was purchased was not served and also the loan availed by him necessitated him to repay the same with interest would definitely cause mental agony, loss and sufferings.    The opposite parties received the legal notice dated 13.05.2016, however, the 1^st and second opposite parties gave reply to the said notice vide Exs.C14 and C15 alleging that the phone was found to be damaged due to external cause of liquid ingression and as per warranty terms and conditions, this service is not covered under warranty.  To establish the same, the opposite parties did not come forward to put forth their contentions before this Forum.   Even though notices were served on all the opposite parties, no one represented and filed reply version contending that the complaint is not maintainable.  The above attitude of the Opposite Party clearly establish the complainant's case and hence, this forum has come to the conclusion that the Complainant has proved the negligent act leading to deficiency of service of the Opposite Parties.  Thus, the complainant is entitled for the claim during the warranty period and Opposite Parties are jointly and severally liable for their deficiency in service and unfair trade practice.

9.       Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the Opposite Parties are jointly and severally directed to 

1. Refund Rs.40,000/- towards the purchase cost of the Mobile Phone to the complainant. 
2. Pay a sum of Rs. 15,000/-  as compensation to the complainant for the deficiency in service.
3. To pay a sum of Rs.5000/- as cost of the proceedings.
4. The opposite parties are entitled to get back the mobile phone from the complainant after compliance of this order.

Dated this the 19^th day of June 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          09.03.2017           Anbazhagan             

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS: NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

     MEMBER