Haryana

Karnal

190/2014

Sanjay Arora S/o Amir Chand Arora - Complainant(s)

Versus

Nagpal Sales Corporation - Opp.Party(s)

Amardeep Singh

14 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.190 of 2014

                                                               Date of instt.: 11.07.2014

                                                          Date of decision: 15.03.2016

 

 

Sanjay Arora son of Shri Amir Chand Arora aged about 44 yerars, resident of 1671, Sector 9, Urban Estate, Karnal.

.                                                                   ……..Complainant.

                                      Vs.

1.Nagpal Sales Corporation, shop No.3, old Char Chaman, link Road, Urban Estate,  Karnal through its owner.

2. FI Info Solutions and Services Pvt.Ltd.493-L, Model Town, near SBI Training Centre, Karnal.

3.Sony Mobiles Communication India Pvt.Ltd. 2^nd A-31, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi.

                                                                         ………… Opposite Parties.

                     Complaint u/s 12  of the Consumer

                     Protection Act.

Before          Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.Amandeep Singh Advocate for the complainant.

                   Sh.Neeraj Rohilla Advocate for Opposite Party no.1.

                   Sh.Sanjay Singla Advocate for the Opposite Parties  no.2 and 3.

.

ORDER:                 

 

                        This complaint         has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he purchased Sony XPERIA –Z-C6602 bearing IMEI No.355666058220236  from Opposite Party No.1, vide invoice No. 7924 dated 7.12.2013 .The said mobile set was carrying one year warranty  including accidental one.  On  22.2.2014, the said mobile stopped charging. On the same day, he approached the authorized service centre of Opposite Party No.3. The engineer of Opposite Party no.2 after checking the mobile  told that there was problem in the charging jack and the same would be removed within 5/6 days, but nothing was done. The job card dated 26.2.2014 was prepared in that regard. On 19.3.2014, he was telephonically called by the said authorized service centre. Accordingly, he reached there and was told that mobile set could not be repaired as the cause of damage was mishandling. He requested the concerned official that there was no mishandling on any kind, but the said official refused to repair the mobile phone.  The service centre issued another job card on 19.3.2014 , though the same was not necessary. Then on 24.4.2014 he sent E-mail to the Opposite Party no.3 for repairing his mobile phone. On 8.5.2014, Opposite Party no.3 sent E-mail to him giving an offer to exchange the mobile hand set at 33% cost of new model’s maximum retail price. After receiving the said E-mail, he again sent E-mail to Opposite Party no.3 on 31.5.2014 expressing his inability to bear the expenses of 33% price of new mobile set. However, the Opposite Party no.3 did not  bother to replace his mobile set.  On 2.6.2014, the Opposite Party no.3 sent him E-mail to give his consent for  making payment of 33% of new mobile phone uptill 5.6.2014. Thereafter, in order to avoid unnecessary litigation he sent E-mail to Opposite Party no.3 on 3.6.2014 giving offer to pay Rs.5000/- instead of 33% as demanded by Opposite Party no.3.  On 25.6.2014, he gave reminder to Opposite Party no.3, but the Opposite Party no.3 informed him that consent was not given upto 5.6.2014, therefore, his request was closed.  The mobile set was covered under accidental warranty for six months, therefore, he was entitled for new mobile set from Opposite Parties without paying money, but the Opposite Parties did not follow the policy and thus there was deficiency in services and unfair trade practice on the part of Opposite Parties, due to which he suffered mental pain and agony apart from financial loss. 

 

2.                 Notice of the complaint was given to the Opposite Parties. The Opposite Party no.1 filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form and that the complainant has no locus standi and cause of action to file the present complaint.

 

                   On merits, it has been pleaded that the complainant never visited the shop of Opposite Party no.1 and never disclosed about the fault in the  mobile set purchased by him. Therefore, the complaint against Opposite Party no.1 is false, frivolous and vexacious to the knowledge of the complainant and has been filed with malafide intention to extort money.

 

3.                Opposite Parties No.2 and 3 filed separate written statement disputing the claim of the complainant. It has been admitted that the complainant purchased Sony XPERIA –Z-C6602 from Opposite Party No.1 on 7.12.2013. It has been submitted that the complainant approached the Opposite Party no.2 for the first time on 19.3.2014 i.e. after using the set for more than four months   with the alleged problem of “charging connector broken” claiming replacement of the hand set under ADP cover. He was informed that hand set will  have to be inspected by the Head Office and approval for replacement under the ADP was required to be  taken for further action. Accordingly, the hand set was sent to the Head Office for inspection and it was found that the alleged problem of charging connector being broken had arisen due to mis use of the hand set and not by accident.ADP cover  was only in case where product suffered damage by accident and not  due to mishandling by the customer. The complainant was accordingly informed that hand set could not be replaced under ADP cover, but he was offered replacement of the handset subject to payment of 33% of the maximum retail price of the handset.  The Opposite Parties purely as a goodwill gesture and not as  admission of liability on its part was willing to offer the replacement of handset to the complainant for  33% of the retailed price of the hand set in an attempt to amicably settle the dispute. Thus, the complainant has filed the present complaint without any cause in order to malign the repudiation of the Opposite Parties and get wrongful monetary gain. The complaint is an abuse of the process of law. There was neither any deficiency nor unfair trade practice on the part of the Opposite Parties. The other allegations made in the complaint have been denied.

 

4.                 In evidence of the complainant, his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C16 have been tendered.

 

5.                 On the other hand, in evidence of the Opposite Parties, affidavit of Meena Bose Ex. OW/A and the documents Ex.O1 to Ex.O4 have been tendered.

 

6.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned Counsel for the parties

 

7.                 The complainant had purchased Sony XPERIA –Z-C6602 from Opposite Party No.1 on 7.12.2013. On 26.2.2014, the hand set of the complainant stopped charging and then he approached the authorized service centre of Opposite Party no.3.The engineer on checking found that there was problem in the charging jack. It  is further the case of the complainant that there was accidental warranty for the mobile set for six months, but despite repeated  requests sent through E-Mails, the Opposite Parties did not replace the mobile set.  On the other hand, the Opposite Parties have submitted that on checking the mobile phone of the complainant, it was found that the alleged problem of  charging connector being broken had arisen due to mishandling of the handset and not by accident, therefore, the same was not covered under the accidental warranty.

 

8.                 Admittedly, there was free accidental damage cover for the Sony XPERIA –Z-C6602 mobile set manufactured by the Opposite Party no.3.  This fact stands established from the document Ex.C16 also. The main question which arises for consideration is whether the charging connector had broken due to accident or mishandling by the complainant. It is important to point out that the Opposite Parties neither in the written statement nor in the affidavit Ex.OW/A clarified as to on what basis the concerned engineer arrived at the conclusion that the charging connector had broken on account of mishandling. It is neither the case of the Opposite Parties  nor any material on record, on the basis of which it can be said  that the charging connector would be broken only on account of mishandling of the hand set and not due to accident in any case.  No report of technical expert has been produced by the Opposite Parties  to show that the charging connector of the mobile phone of the complainant had broken only due to mishandling. When the complainant had used the mobile set for a period of about four months, it cannot be considered that he mishandled the same and had broken t6he charging connector. He had purchased the mobile phone for Rs.33000/-. No man of ordinary prudence would mishandle such a costly mobile set, rather he would take all necessary precautions for maintaining the mobile phone in proper order. The connecting charger could break due to some accident i.e. may be  on account of fall  while the mobile set was connected with the charger. Therefore, it is not established in all probabilities the connecting charger of the mobile hand set of the complainant had broken on account of mishandling and not due to some accident. The complainant has filed affidavit in support of his complaint and as per his case the charging connector had broken due to accident and he has claimed benefit of accidental warranty.  There is no cogent and convincing evidence of the Opposite Parties to rebut the evidence of the complainant.

9.                 In view of the aforediscussed facts and circumstances, we arrive at the conclusion that it is not established that charger connector of the mobile set of the complainant had broken due to mishandling, therefore, the case of the complainant was covered under the accidental warranty and the Opposite Party no.3 was required to get his hand set repaired and if the same was not repairable, then replace the same. However, the Opposite Party no.3 refused to repair the handset of the complainant and  such  act on its part amounted to deficiency in services.

 

10.               As a sequel to the foregoing discussion, we accept the present complaint and direct the Opposite Party no.3 to repair the mobile set of the complainant and if the mobile set is not repairable, then to replace the same with a new one of the same cost.  The complainant shall also be entitled for a sum of Rs.2200/- for the mental agony and harasment caused to him and for the litigation expenses.The Opposite Party no.3  shall make the complaince of this order within a period of thirty days from the date of receipt of the copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:15.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

Present:-        Sh.Amandeep Singh Advocate for the complainant.

                   Sh.Neeraj Rohilla Advocate for Opposite Party no.1.

                   Sh.Sanjay Singla Advocate for the Opposite Parties  no.2 and 3.

 

                   Arguments heard. For orders, the case is adjourned to 15.3.2016.

Announced
dated:14.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

Present:-        Sh.Amandeep Singh Advocate for the complainant.

                   Sh.Neeraj Rohilla Advocate for Opposite Party no.1.

                   Sh.Sanjay Singla Advocate for the Opposite Parties  no.2 and 3.

 

                   Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:15.03.2016.

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.