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Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       Sh.Subash Chander has brought the instant complaint under section 12 and 13 of the Consumer Protection Act, on the allegations that he purchased one Sony Xperia Z2/D6502 having IMEI No.35249406059410 from Opposite Party No.1 being the authorized dealer of Opposite Party No.2, the manufacturer of the aforesaid Mobile Set for a valuable consideration of Rs.39,990/- on 19.10.2014 vide invoice No.21922. The Mobile Set in question was waterproof as per the claim of the Opposite Party No.2 i.e. manufacturer in its advertisements as well as  the broacher made available with the Mobile Set in question. Due to some inherent fault in the Mobile Set in question, it suddenly stopped working and the Mobile Set in question did not start. The complainant  immediately approached the Opposite Party No.3 the authorized service centre of Opposite Party No.2 and Mobile Set in question was deposited  with them vide ticket ID No.15022401382 and Job No.W115022401382 dated 24.2.2015. Thereafter, almost one year has elapsed, but till date, the Mobile Set in question has not been delivered back to the complainant after repair by Opposite Party No.3 and they have started claiming that the Mobile Set in question was suffering from liquid ingression and warranty has become void. As per the claim of Opposite Party No.1, the manufacturer, the handset has IP (Ingress Protection) ratings of IP55 and IP58. These ratings mean that the Mobile Set in question is dust resistant and is protected against low pressure water stream as well as against the effects of submersion for 30 minutes in fresh (non saline) water upto 1.5 meters deep.” The Mobile Set in question has always been used by the complainant after taking every precaution that it was not exposed to water and the complainant does not know how the Mobile Set in question was claimed to be having moisture by Opposite Party No.3. It clearly shows that there was some manufacturing defect in the Mobile Set in question and it was not properly sealed by the company, Opposite Party No.2 which led to the ingression of liquid as allegedly claimed by Opposite Party No.3. The aforesaid acts of the ops in not providing the after sale service and rectifying the genuine problems of the complainant is an act of deficiency in service in the eyes of law and has caused the mental agony and harassment to the complainant besides the financial loss to the complainant and for which the Opposite Parties  is liable to pay the compensation of Rs.50,000/- to the complainant.  Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties  may be directed to replace the Mobile Set in question in question  with a new Mobile Set in question of the same model.

b)      Opposite Parties be directed to attend the complaints of the complainant and resolve the same  to the satisfaction of the complainant.

c)       Opposite Parties  be directed to pay the adequate cost of the present litigation.

d)      Any other relief to which the complainant is found entitled under law and equity may also be awarded in favour of the complainant in the interest of justice, equity and fairplay.   

Hence, this complaint.

2.       Opposite Parties  appeared through counsel and filed written reply contesting the claim of the complainant taking preliminary objections inter alia therein that as per the records of the company, the complainant purchased the Mobile Set in question from Opposite Party No.1 after a detailed demonstration of the features, functions, applications alongwith the detailed explanation of all the warranty terms and conditions of the aforesaid mobile. Opposite Party No.2 provided a limited warranty of one year on its product 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. Opposite Party No.2 also provided user guide alongwith the Mobile Set in question, which mentions the precautions one should take while using the phone, and if a person does not comply with the same then Opposite Party No.1 is not liable for any damage/ defect in the product. Further, this Mobile Set in question has been certified by international bodies for certain standards relating to water and dust resistance and these standards are acceptable worldwide. On the basis of these certifications  the Opposite Parties  are making the claim regarding water and dust resistance only which is not maintainable as the company does not provide any warranty against the defect caused due to  dust and water.  It is clear that under the terms of warranty the answering Opposite Parties  are not liable to repair or replace the Mobile Set in question as the product lies outside the scope of warranty. It is averred that the defect in the Mobile Set in question has arisen due to the ingress of liquid. After purchase the Mobile Set in question, the complainant for the very first time approached Opposite Party No.3 on 24.2.2015 raising an issue of no text or picture display with the aforesaid Mobile Set in question. Opposite Party No.3 without any delay immediately attended the complainant and inspected the Mobile Set in question. Upon inspection , it was observed that the Mobile Set in question got affected by liquid ingression.  It was further observed that the liquid entered the Mobile Set in question through ports which clearly establishes the fact that either the ports were open or the ports were not tightly closed.  Said fact was communicated to the complainant and an estimated cost of the repair was also shared with the complainant, however, the same was rejected by the complainant. There was no inherent defect observed in the Mobile Set in question by Opposite Party No.3. On merits, the Opposite Parties  took up the same and similar pleas as taken by them in the preliminary objections.    Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered  his duly sworn affidavit Ex.CW1/A in support of the allegations made in the complaint and also produced copy of bill Ex.C1, copy of service job sheet Ex.C2  and closed the evidence.

4.       On the other hand, to rebut the evidence on behalf of the complainant, Opposite Parties tendered into evidence the affidavit of Sh.Prinayak Chohan Ex.Op1,2,3/1 alongwith documents Ex.OP1,2,3/2 to Ex.OP1,2,3/4, affidavit of Gurwinder Singh ExlPO1,2,3/5 and document Ex.OP1,2,3/6 and  closed the evidence on behalf of Opposite Parties .

5.       We have heard the complainant as well as ld.counsel for Opposite Party No.2 and have carefully gone through the evidence on record.

6.       In his submissions, the complainant has reiterated the averments made in his complaint and contended that he purchased one Sony Xperia Z2/D6502 having IMEI No.35249406059410 from Opposite Party No.1 being the authorized dealer of Opposite Party No.2, the manufacturer of the aforesaid Mobile Set for a valuable consideration of Rs.39,990/- on 19.10.2014 vide invoice No.21922. The Mobile Set in question was waterproof as per the claim of the Opposite Party No.2 i.e. manufacturer in its advertisements as well as  the broacher made available with the Mobile Set in question. Due to some inherent fault in the Mobile Set in question, it suddenly stopped working and the Mobile Set in question did not start. The complainant  immediately approached the Opposite Party No.3 the authorized service centre of Opposite Party No.2 and Mobile Set in question was deposited  with them vide ticket ID No.15022401382 and Job No.W115022401382 dated 24.2.2015. Thereafter, almost one year has elapsed, but till date, the Mobile Set in question has not been delivered back to the complainant after repair by Opposite Party No.3 and they have started claiming that the Mobile Set in question was suffering from liquid ingression and warranty has become void. As per the claim of Opposite Party No.1, the manufacturer, the handset has IP (Ingress Protection) ratings of IP55 and IP58. These ratings mean that the Mobile Set in question is dust resistant and is protected against low pressure water stream as well as against the effects of submersion for 30 minutes in fresh (non saline) water upto 1.5 meters deep.” The Mobile Set in question has always been used by the complainant after taking every precaution that it was not exposed to water and the complainant does not know how the Mobile Set in question was claimed to be having moisture by Opposite Party No.3. It clearly shows that there was some manufacturing defect in the Mobile Set in question and it was not properly sealed by the company, Opposite Party No.2 which led to the ingression of liquid as allegedly claimed by Opposite Party No.3. The aforesaid acts of the ops in not providing the after sale service and rectifying the genuine problems of the complainant is an act of deficiency in service in the eyes of law and has caused the mental agony and harassment to the complainant besides the financial loss to the complainant.

7.       On the other hand, ld.counsel for Opposite Parties  has vehemently repelled the aforesaid contention of the complainant on the ground that as per the records of the company, the complainant purchased the Mobile Set in question from Opposite Party No.1 after a detailed demonstration of the features, functions, applications alongwith the detailed explanation of all the warranty terms and conditions of the aforesaid mobile. Opposite Party No.2 provided a limited warranty of one year on its product 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. Opposite Party No.2 also provided user guide alongwith the Mobile Set in question, which mentions the precautions one should take while using the phone, and if a person does not comply with the same then Opposite Party No.1 is not liable for any damage/ defect in the product. Further, this Mobile Set in question has been certified by international bodies for certain standards relating to water and dust resistance and these standards are acceptable worldwide. On the basis of these certifications  the Opposite Parties  are making the claim regarding water and dust resistance only which is not maintainable as the company does not provide any warranty against the defect caused due to  dust and water.  It is clear that under the terms of warranty the answering Opposite Parties  are not liable to repair or replace the Mobile Set in question as the product lies outside the scope of warranty. It is averred that the defect in the Mobile Set in question has arisen due to the ingress of liquid. After purchase the Mobile Set in question, the complainant for the very first time approached Opposite Party No.3 on 24.2.2015 raising an issue of no text or picture display with the aforesaid Mobile Set in question. Opposite Party No.3 without any delay immediately attended the complainant and inspected the Mobile Set in question. Upon inspection , it was observed that the Mobile Set in question got affected by liquid ingression.  It was further observed that the liquid entered the Mobile Set in question through ports which clearly establishes the fact that either the ports were open or the ports were not tightly closed.  Said fact was communicated to the complainant and an estimated cost of the repair was also shared with the complainant, however, the same was rejected by the complainant. There was no inherent defect observed in the Mobile Set in question by Opposite Party No.3.

8.       It is not disputed that the Mobile Set in question has been purchased by the complainant from Opposite Party No.1 being the authorized dealer of Opposite Party No.2, the manufacturer of the aforesaid Mobile Set for a valuable consideration of Rs.39,990/- on 19.10.2014 vide invoice No.21922, copy of the invoice accounts for Ex.C2. It is also not disputed that for the first time, the complainant approached the authorized service centre of Opposite Parties  i.e. Opposite Party No.3 vide ticket ID No.15022401382 and Job No.W115022401382 dated 24.2.2015, copy of job sheet Ex.C3, i.e. within a warranty period of one year and since then, the Mobile Set in question is lying with Opposite Party No.3. However, the Opposite Parties  has specifically submitted that the Mobile Set in question is having warranty of only one year, but on the other hand, the Mobile Set in question for the first time, became defective within warranty period as submitted above. It is not disputed that the Mobile Set in question is lying with Opposite Party No.3 which shows that the complainant is suffering in the hands of Opposite Parties  since 24.02.2015 and in this way, the complainant was compelled to file this complaint to redress his grieve by spending huge amount on the complaint which shows deficiency in service on the part of Opposite Parties. But however, the  claim of the complainant for the replacement of the Mobile Set in question or to refund its price is not tenable because the complainant has nowhere produced any proof or expert report that the Mobile Set in question having any manufacturing defect.  In such a situation, the   Opposite Parties   are definitely liable to repair the Mobile Set in dispute to the satisfaction of the complainant without charging any amount since the Mobile Set in dispute happen to be within warranty period. 

9.       Consequently, the instant complaint succeeds  and all the Opposite Parties  jointly and severally are directed to repair the Mobile Set in dispute to the satisfaction of the complainant, without charging any amount, within one month from the receipt of copy of the order, failing which the Opposite Parties   shall   refund the sale price of the Mobile Set in dispute i.e. Rs.39,990/-, to the complainant alongwith interest @ 6% per annum from the date of passing of the order until full and final payment. All the Opposite Parties   are held liable jointly, severally & co-extensively to comply with the order.   Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 05.04.2017.