O R D E R
Subhash Gupta, Member
The complainant has filed the present complaint against O.Ps under section 12 of the Consumer Protection Act, 1986. The facts as alleged in the complaint are that complainant purchased a Mobile handset make Sony Xperia Z1 on 16.4.2014 from OP-2 for a sum of Rs.40,990/-. It is further alleged in the complaint that in the month of November 2014 manufacturing problem such as heating and hanging problem occurred. It is stated that AUX was changed by the Service Centre of O.P-1 and mobile set was returned to him. However due to the rains the mobile set became wet due to which same became dead and non-functional, despite the fact that at the time of purchase of mobile set OP-2 has assured and promised that the said mobile set is completely water proof and there can be no damage even in water also. It is further contented in the complaint that on 11.12.2014 the complainant rushed to the authorized service centre of OP-2 i.e. M/s Dhanvi Communication, D-16, Kamla Nagar, Landmark, RCKC, Sareewala, Delhi who after great persistence accepted the mobile set for service. It is alleged in the complaint that since 11.12.2014 the complainant is running from pillar to post to get his mobile set but of no avail. The complainant has also sent e-mails to OP-1 dated 17.12.14 and 23.12.14 which were duly acknowledged by OP-1 but still nothing has been done regarding his mobile set. The complainant vide this complaint is claiming refund of the cost of the mobile set or new one with the same specification and model. The complainant is also claiming compensation to the tune of Rs.1,00,000/- on account of mental agony, harassment and pain etc. and a sum of Rs.25,000/- as litigation cost.
2. Notice of this complaint was issued to both the O.Ps which have chosen neither to appear nor filed any reply to the complaint. Both the OPs were proceeded ex-parte vide orders dated 3.08.2015. The complainant in support of his case has filed affidavit, copy of cash memo, copy of service jobsheet, copies of e-mails, copy of legal notice and internet generated material in support of his complaint. The jobsheet clearly states that the mobile set was having void warranty.
3. We have carefully gone through the documents filed by the complainant his main thrust in support of his claim is regarding assurance and promise given by OP-2 regarding the mobile set being water proof. We have also examined internet generated material which has been filed by the complainant in support of his case. The material states that;
“ SNAP AWAY UNDERWATER
With the waterproof(1) Xperia Z1, you can take pictures while swimming in freshwater for up to 30 minutes. You can even dive up to 1.5 m with it. Just remember that all the covers for the micro USB port, the micro SIM slot, the headphone jack and the memory card slot must be firmly closed.
*(1) compliance with IP55 and IP58, the Xperia Z1 is protected against the ingress of dust and waterproof. Provided that all ports and covers are firmly closed, the phone is (i) protected against low pressure jets of water from all practicable directions in compliance with IP 55; and/or (ii) can be kept under 1.50 metre of freshwater for up to 30 minutes in compliance with IP58. The phone is not designed to float or work submerged underwater outside of the IP55 classification range. This may lead to your warranty being void.”
4. From the above it is clear that although mobile set was protected against ingression of dust and was water proof but subject to certain conditions of attached thereto which is apparent from the above. The complainant has neither pleaded in the notice nor in the complaint that he has taken precautions as provided in the handbook and internet generated material. Therefore, he cannot take advantage of not taking the due care to preserve the mobile set while exposing it to water.
4. Sony India Ltd. in response to the legal notice sent by the complainant has replied that upon the inspection of the product/mobile set, it was observed that the mobile set is affected by liquid. Liquid ingression is possible in the mobile set while parts are open or not closed tightly. Since the defect in the mobile set is due to external factor and not inherent to the set under such circumstances the warranty stands void as per the warranty policy. It has been further stated in the reply that repairs of mobile set will be on chargeable basis which are to be borne exclusively by the customer.
5. In view of above discussion it is evident and apparent that the complainant has not taken due care of the handset as contemplated in the advice in respect of the handset being water proof, therefore, he cannot take advantage of being negligent and careless. We are, therefore, of the considered view that no deficiency in service or defect in product can be attributed to the OPs. The complaint being devoid of any merits is, therefore, dismissed. Ordered accordingly.
Copy of this order be sent to the parties as per rules.
Announced this 3rd day of February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
