DATE OF DISPOSAL: 27.12.2018
Sri Karuna Kar Nayak, President.
The complainant Debananda Acharya has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Party ( in short the O.P.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased one Sony mobile model Sony 2R IMEI NO. 356603050375886, Battery No. 005300, Charger No. 3413W21304085 on dated 29.10.2013 vide cash bill No. 94 for Rs.33,000/-. On 15.05.2014 the mobile became total dead and did not function for the reasons not known. The concerned mobile was purchased by the complainant to give gift to his daughter Kumar Snigdha Acharya who herself is a minor. The complainant took the mobile to the service centre i.e. O.P.No.2 on 16.05.2014 who received the same and issued service job sheet. The mobile in question was within the warranty period which speaks that, this limited warranty will last for a period of one year as from the original date of purchase of the product. The complainant ran from time to time to the O.P.No.1 and 2 for immediate replacement of the defective mobile or to refund Rs.33,000/- only with interest. The O.P.No.2 with whom the mobile is still for repair do not respond and says in negative. The complainant has suffered from harassment causing mental agony for the deficiencies of services on the part of the O.Ps. The complainant purchased the mobile on dated 29.10.2013 which started its defect just after six months. On 15.05.2014 and from the said date the mobile is with O.P.No.2. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps for replacement of a good mobile set worth Rs.33,000/- or alternatively for refund of Rs.33,000/- with interest, compensation of Rs.30,000/- and cost of litigation of Rs.5,000/- in the best interest of justice.
3. Notices were issued against the Opposite Parties but the O.P.No.1 & 2 neither preferred to appear nor filed any written version as such the O.P.No.1 & 2 set exparte on dated 26.04.2016.
4. Upon notice the O.P.No.3 appeared and filed version through his advocate. It is stated that as per the records of the answering O.Ps, the complainant herein had purchased a Sony Ericsson android operating based mobile phone, Model: C 5502 Xperia ZR bearing IMEI No.356603050373886 on 29.10.2013 after a detailed demonstration of the features, functions, applications and after satisfying himself with the condition of the handset. The O.P.No.3 provides a warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with the terms and conditions of the warranty provided by it and can not be held liable for the claims falling outside the scope of the warranty. The complainant approached the O.P.No.2 on 16.05.2014 that is after using the handset for more than a period of seven months without any problem whatsoever with complaints of “no power” with respect to the handset. Upon inspection of the handset by the engineers of the answering O.Ps, the handset was found to be damaged due to external cause of liquid ingression. Definite evidence of liquid entry was found, and therefore the complainant was informed that the handset cannot be repaired within the warranty terms. Accordingly, the complainant was provided with a repair estimate to repair the handset. However, the complainant refused to approve the said estimate and insisted that free of cost repairs be carried out. Since the phone was still under the period of warranty even though the warranty had been rendered void due to external liquid ingression, the answering O.Ps, as a goodwill gesture have offered to the complainant an exchange of the handset of the same model at a 20% discounted price vide a letter dated 18.09.2014. This offer, however, has been rejected by the complainant and has also been concealed by the complainant from this Hon’ble Forum. The handset has been damaged due to the fault of the complainant himself and the burden of the same must not be borne by the answering O.Ps in the interest of justice and equity. The captioned complaint filed by the complainant is vexatious, baseless and is more of an abuse of the process of law. It is evident that the complainant is not entitled get to any refund or compensation whatsoever. Hence the O.P.No.3 prayed to dismiss the case.
5. To substantiate his case the complainant has filed his evidence on affidavit, documents as per list and written notes of argument.
6. On the date of hearing of the case, we heard the learned counsel for the complainant as since long no steps is taken either on behalf of O.P.No.3 or his advocate. We perused the complaint petition, written version, written arguments and documents placed on the case record. We have also thoughtfully considered the submissions made before us by the learned counsel for the complainant. On 15.05.2014 the mobile became dead and did not function for the reasons not known. During the warranty period the handset was found to be defective. The complainant handed over the telephone to O.P.No.2 for repair and the set now still with O.P.No.2. In his affidavit the complainant has stated that the O.Ps failed to replace the defective handset phone or in alternative to refund the cost of the said phone i.e Rs.33,000/- during the warranty period. In the instant case O.P. No.1&2 did not contest the case as such they set exparte. Though O.P.No.3 appeared and filed his written version but did not file any written argument inspite of repeated opportunity was given. It also reveals that O.P.No.3 has not filed any documentary evidence that due to external liquid ingression the complainant’s mobile was defective. Hence, taking the sole testimony of the complainant and materials on record in to consideration it is presumed that the complainant’s mobile is defective one. It is also pertinent to mention here that the O.Ps failed to provide proper service to the complainant during the warranty period.
7. On foregoing discussion it is crystal clear that the O.Ps are negligent in rendering proper service to the complainant. Hence, in our considered view there is deficiency in service on the part of the O.Ps.
8. So far as the compensation and cost of the case is concerned, we are convinced that the complainant has repeatedly run after the O.P.No.2 for repairing or replacement of his defective mobile set due to problem during warranty period but the O.Ps failed to take any effective steps to short out the problem of the complainant for which the complainant has suffered physically and mentally for which he is to be compensated. Further the complainant is also entitled to get cost of litigation since he has hired the services of an advocate for filing his complaint in this Forum and has incurred expenses attending the case. Under the above facts and circumstances, in our considered view, it will be just and proper to award compensation as well as litigation cost in favour of the complainant.
9. In the result, the complainant’s case is allowed against the O.Ps. The O.Ps are jointly and severally liable as such they are directed to refund the cost of the defective mobile set i.e. Rs.33,000/- and Rs.5000/- as compensation for mental agony alongwith Rs.2000/- as cost of litigation to the complainant within 45 days from the date of receipt of this order, failing which all the dues shall carry 12% interest per annum. The case of the complainant is disposed of accordingly.
The order is pronounced on this day of 27th December 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
