Sri Shyamal Gupta, Member

This Appeal is directed against the Order dated 20-03-2017 passed by the Ld. District Forum, Kolkata, Unit-I (North) in CC/744/2017, whereof the complaint has been dismissed.

In a nutshell, case of the Complainant is that, he purchased a mobile handset from the OP No. 1 on 27-07-2014.  When he faced some problem with the handset, he took the same to the OP No. 3.  After inspection of the handset, it was informed to the Complainant that the problem developed due to liquid ingression.  The OP No. 3 verbally estimated the repairing cost as Rs. 18,500/-. The Complainant then took up the matter with the OP No. 2. However, despite exchange of several correspondences, the grievance remained unresolved; hence, the case.

OP No. 2, on the other hand, stated that the subject handset was not properly closed at the time of incident which caused damage to the handset.  Complainant did not abide by the instructions outlined in the user guide due to which the phone got damaged.   Since damage occurred to the product due to its negligent use by the Complainant, he was not entitled to any warranty benefit.

Decision with reasons

At the time of hearing, Ld. Advocates for the Appellant and Respondent Nos. 1 and 2 were heard.  We have also gone through the material on record.

The Respondents attributed the damage to the careless use of the handset which has, however, been strongly denied by the Appellant.

It appears that the problem developed owing to ingression of rain-water inside the handset.  The Appellant in this regard blamed the misleading advertisement of the Respondent No. 2.  It is alleged by the Appellant that the Respondent No. 2 through eye-catching advertisement described the product as water resistant, however, in reality, it was not so.  It is argued by the Ld. Advocate that through advertisement the Respondents claimed that the handset is water-proof which is capable of taking pictures under water up to a depth of 1.5 meters for a period of 30 minutes.  Although through its advertisement the Respondents made tall claims about the handset, it did not sound out any such caution that one needed to close all external connectors while doing so.  Respondent No. 2 alleged that liquid ingression took place owing to the fact that all external connectors were not closed; whereas, the start-up guide underscores the need to firmly attach all covers to prevent water ingression. Stating that ‘covers’ and ‘external connectors’ have altogether different meanings, it is alleged that the Respondent No. 2 intentionally twisted the words to safeguard its mala fide intention.  In this regard, the Ld. Advocate referred to the decision of State Commission, U.T. Chandigarh in the matter of Sony India Pvt. Ltd. vs. Anil Kumar & Anr. (FA/314/2014).  Relevant portion of the observation of said State Commission, as pointed out by the Ld. Advocate appearing on behalf of the Appellant, is appended below:

“12.No doubt, Clause 3 of the warranty terms and conditions, reads as under:-

This warranty does not cover any failure of the Product due to normal wear and tear, or due to misuse, in accordance with the Sony instructions for use and maintenance of the Product.  Nor does this warranty cover any failure of the Product due to accident, software or hardware modification or adjustment, acts of God or damage resulting from liquid xxxxxxxxxxxxxxxxxxxxxxxx.

13.   The mere fact that such a condition existed in the warranty, did not mean that the Opposite Parties were not liable either to replace the handset or refund the price thereof, when it stopped working, on account of ingress of water therein. Annexure C-2 is the advertisement, which was given by the Opposite Parties, in respect of the mobile handset, on the basis whereof, the complainant purchased the same. Under the heading Water-resistant, it was mentioned as under :-

 Water-resistant How can we be certain?

In order to get the high IP55 & IP 57 rating, we submerge Xperia Z under water for 30 minutes and make sure its good as new when it comes out.  Its also resistant to water jets!  

14.   From the afore-extracted portion of the advertisement, it is evident that the mobile handset was represented to be water resistant, when submerged under water for 30 minutes and also resistant to water jets. Since, as per the advertisement Annexure C-2, the mobile handset was water resistant, under the aforesaid conditions, it should have certainly withstood the resistant test, on the fateful day i.e. on 26/27.06.2013. It was not the case of the Opposite Parties, that the mobile handset was kept submerged in the water, for more than the period, mentioned in the advertisement Annexure C-2. It was also not the case of the Opposite Parties that Annexure C-2 did not relate to them, or was not issued by them. Since the Opposite Parties, in clear-cut terms, proclaimed that the mobile handset was water resistant, later on, they could not take the shelter of warranty terms and conditions. In case, the mobile handset was not water resistant, under the conditions, as mentioned in Annexure C-2, then the Opposite Parties should not have proclaimed the same, while selling it to the complainant”.

The Ld. Advocate of the Appellant also argued that the Respondent No. 2 failed to put forth any material proof to establish that the Appellant was negligent in any manner whatsoever.

Appellant has filed the copy of an advertisement pertaining to the subject model.  It is seen in the said advertisement that one person is making video recording inside deep water using the particular model that the Appellant purchased.  Now, on going through such advertisement, if one assumes that, the concerned model is fully water-resistant, can one really be cursed for attaching due importance to the tall claim of the Respondent No. 2 about the product.  The Respondent No. 2 though underscored the need to snap all external connectors during rain to prevent water ingression inside the handset, there is nothing to show that the Appellant was using any external connector at that relevant time.   

Clearly, the Respondent No. 2, for the purpose of making commercial gain, created a misleading ad. It goes to show that the Respondent No. 2 indulged in unfair trade practice for the purpose of promoting its product. The advertisements have a significant influential role in consumer choice. Therefore, it is imperative that companies paint a true picture about the efficacy/capability of their products.  Misleading advertisement not only violate consumers’ right to information but can also affect their lives to a degree.  False promises, exaggerated claims, not revealing important information are few examples of misleading advertisement. Such deceiving act of manufacturers cannot be allowed to flourish.  There is an urgent need to deal with such menace sternly.

In the case of M. R. Ramesh VS M/S Prakash Moped House (R.P. No. 831/2001), Hon’ble National Commission warned against advertisements that use fine print to hide crucial information pertaining to products and services, thereby mislead the consumer and by awarding substantial compensation to the consumer, who was misled by such an advertisement, the National Commission made it clear that it would not take such violations of consumers’ right to information lightly. It was advised to manufacturers and service providers that “advertisements should not mislead and should give a clear picture of the quality of the goods sold”. 

Since by resorting to unfair trade practice, the Respondents sold the subject handset to the Appellant, in our considered view, they have to own up due responsibility for the harassment/inconvenience/sufferings of the Appellant.  Admittedly, even if the product is repaired, there is no guarantee that the handset would function properly.  Therefore, taking into consideration the facts and circumstances of the case in its entirety, we deem it fit and proper to direct the Respondents to return the price of the handset to the Appellant together with other reliefs.  Besides this, taking strong exception to the indulgence of the Respondents in unfair trade practice, we also hold them liable to deposit a token fine with the District Consumer Welfare Fund.

The Appeal, thus, stands allowed.

Hence,

O R D E R E D

The Appeal stands allowed against the Respondents with cost for a sum of Rs. 2,000/-.  Respondents shall jointly/severally return the price of the mobile handset to the Appellant along with cost of finance and pay compensation to the tune of Rs. 25,000/- within 40 days hence.  Respondent No. 3 shall also return the advance sum of Rs. 10,000/- within the afore mentioned stipulated time frame within the above mentioned time frame.  Respondent No. 2 shall deposit a sum of Rs. 1,00,000/- with the District Consumer Welfare Fund within 40 days from this day for indulging in unfair trade practice. The impugned order hereby stands set aside for obvious reasons.