BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    31^st DAY OF DECEMBER 2018

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to take back Sony Z3 (Model No.D6653) Black colour mobile hand set vide IMEI No.355098060390254 from OP-1 by paying Rs.51,762-90 to the complainant which he paid to buy the said mobile handset along with interest @ 2% per month from the date of purchase, to pay compensation  of Rs.4,00,000/- towards the deprivation of mobile handset and causing loss in the profession of the complainant and also towards causing mental agony, sufferings and inconvenience and such other reliefs as the Forum deems fit to grant under the circumstances of the case.

2. The brief allegations made in the complaint are as under:

That the complainant is the customer of OPs.  The complainant purchased Sony Z3 (Model No.D6653) Black colour Mobile Hand set vide IMEI No.355098060390254 from OP-1 on 24.10.2014 by paying Rs.61,762-90 for which you have given receipt vide bar code No.874501104924102014 along with guarantee card.  That complainant with a fond hope the mobile handset which he brought from the OPs is the best one in the market purchased the same with lot of expectations.  But, to the utter disappointment of the complainant the said handset purchased by him had serious defects.  In its dismal form the said mobile handset had been repeatedly switching off since from the date of purchase and one unfortunate day it was dead for ever.  Disappointed and frustrated over his newly purchased hand set complainant called the customer care on the same day.  Customer care crew advised him to visit the OP-2, who is authorized service centre of OP-3.  Having no other remedy complainant called to OP-2 and handed over the said mobile hand set for repair on 11.05.2015 with their assurance that the problem would be resolved soon.  That when complainant brought to the notice of OP-2’s Branch Manager he accepted the fact that the said mobile handset has defect and promised the complainant that he shall rectify the defect.  But, he failed to rectify the defect as promised by him even after repeated request made by him.  On the contrary, he has adamantly shown negligent attitude and have rudely behaved with the complainant.  It is pertinent to bring it to the notice of this Forum, that, dejected and dissatisfied over the hopeless performance of the newly bought handset, the complainant returned the said mobile handset to OP-2 at his branch office at Malleshwaram.  At present the said handset is in the custody of OP-2.  Now the complainant who is very much dependent over the mobile handset is deprived of the same and due to this, he had to suffer losses in his profession.

That, being disgusted by the negligent attitude shown by the OPs, as a last resort complainant got issued a legal notice through his counsel on 09.06.2015 calling upon the OPs to take back mobile handset and refund the amount he has paid to purchase the said defective handset from them on 24.10.2014 by taking back the defective handset within 7 days from receiving the legal notice.  That even after issuing the said legal notice so far the OPs have neither taken any action to the said notice served nor do they have replied to the notice.  The OPs have rendered deficiency of service in selling the defective mobile handset by name Sony Z3 (Model No.D6653) to the complainant and in not refunding the amount paid by him to purchase the said mobile handset as demanded by him in his legal notice served to them on 10.06.2015.  Hence this complaint.

3. In response to the notice issued, OP-1 appeared through their advocate and filed their version contending in brief, as under:

That the complaint against OP-1 is not maintainable in law or on facts and is liable to be dismissed.  That it is inter alia engaged in retail sale of electronic goods and home appliances.  OP-3 is a well known manufacturer and marketer of “Sony” products, including but not limited to Mobile phones and, the OP-1 is one of the dealers of the OP-3, duly authorized to sell the products, manufactured by OP-3.  As per agreement between OP-3 and OP-1 and, in accordance with the prevailing trade practice, the OP-3 is responsible to provide all after sale services in relation to the products manufactured and marketed by it.  In order to provide the required after sale services to its customers, OP-3 has set up its service centers in various cities of India including Bangalore and the OP-2 is one of such authorized service centre of OP-3.  OP-3 provides guidelines to its customers regarding product details, after sale services, list of service centers and contact details of customer care centers etc., in the handbook/user manual enclosed with its products.  Moreover, OP-3 vide, its warranty, undertakes to service its products and rectify the manufacturing defects in the products sold to the retail customers subject to the warranty conditions.

That on perusal of the complaint, it is evident that there is no delay, negligence or deficiency in service attributed to this OP-1 with regard to the alleged defects in the mobile phone, said to have been purchased by the complainant from this OP-1.  The problems allegedly experienced by the complainant with mobile phone, as per the aforesaid user manual was to be addressed to the OP-2 and when the complainant raised a complaint regarding the phone, he was promptly informed to approach the OP.2/3 and accordingly the complainant appears to have approached the OP-2.  OP-1 was unaware of what transpired between them thereafter.  However, this OP-1 was informed by OP-3 that the phone in question was repaired to its normal condition by OP-2 and was ready for delivery on 10.06.2015 and it was the complainant who was refusing to take delivery of the phone in question.  It is also very clear from the complainant’s notice, annexed to the present complaint that the grievance, if any, was with OP-2, the service centre of OP-3 and the handset appears to have been repaired to its working condition, however, the complainant appears to have unwilling to take back the same from OP-2, as evident from the reply notice of the OP-3.  In the aforesaid circumstances, this OP has no role to play in the dispute, especially when the complainant’s grievance appears to have been address as per the warranty terms.  As such the above complaint is not maintainable in so far as this OP-1 is concerned and is liable to be rejected against them.  That the complainant has not placed any materials before this Forum to show that the mobile phone allegedly purchased by him from this OP-1 is indeed defective and has not initiated any steps under Sec.13 (1) (c) of the C.P Act.  In the absence of any material to prove the manufacturing defect in the said mobile phone produced by the complainant, as on the date of filing of the complaint, this complaint is not maintainable against the OP-1.

OP-1 has also given para wise reply to the contents of the complaint, which appears to be denial in nature.

For the reasons mentioned above, OP-1 prays for dismissal of the complaint with costs.

4. In response to the notice issued, OPs.2 & 3 appeared through their advocate and filed their version contending in brief, as under:

That the OP-1 is the authorized dealer of OP-3 and the OP-2 is the authorized service centre of OP-3.  Therefore, the present reply is being filed on behalf of OPs.  That the OP-1 and 2 have authorized the OP-3 to defend it in the complaint.  That as per the records of the company, the complainant herein had purchased a Sony Xperia Z3 (hereinafter referred to as “Handset/Mobile”), bearing model No.D6653 on 24.10.2014 after a detailed demonstration of the features, functions, applications by the retailer and after satisfying himself with the condition of the mobile phone.  OP-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 cannot be held liable for the claims falling outside the scope of the warranty.  The relevant terms of warranty provided by the OP-3 to the complainant are as follows:

“Subject to the conditions of this Limited Warranty, Sony warrants this product to be free from defects in design, material and workmanship at the time of original purchase by a Consumer, and for a subsequent period of One (1) year, which is the Warranty period.”

“If, during the Warranty period this product fails to operate under normal use and service, due to defects in materials or workmanship, the Sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the condition stipulated herein.”

Furthermore clause 3 of the terms of warranty provided by the OP-3 to the complainant clearly states the following:

“This Warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the Product.  Nor does this warranty cover any failure of the Product due to accident, modification or adjustment, acts of God or damage resulting from liquid.”

That the complainant after enjoying the handset for 7 months approached the OP-2 on 11.05.2015 with the issue of “No Power” After the thorough inspection of the handset by the service engineer of the Opposite Party it was discovered that the display of the handset is required to be replaced which was duly replaced by the service engineer of the Opposite Party No.2 on free of cost basis and thereafter, the handset was collected by the Complainant in perfect working condition on 09.06.2015”.

That the DEMO of the handset failed after the thorough inspection of the handset by the service engineer of the OP it was discovered that the PCB of the handset is defective and is required to be replaced which was duly replaced by the service engineer of the OP-2 on free of cost basis and thereafter the same was communicated to the complainant.  That the complainant is not ready to collect the handset and instead demanding refund of the price of the handset and the complainant despite the fact noted above has filed the instant consumer proceedings just to harass the answering OPs.  That soon after the receipt of the said legal notice, OP-3 herein vide its reply dated 30.06.2015 stated the fact that the PCB was replaced and set was made in working condition as per the standards and was informed to the complainant on 10.06.2015 but the complainant refused to collect the repaired set from the OP-2.  Complainant has filed the complaint to harass and tarnish the image of the answering OPs in order to extort money.  That the complaint is false, malicious, vexatious and incorrect and is nothing but an abuse of the process of law and it is an attempt to waste the precious time of this Forum, as the same has been filed by the complainant just to avail undue advantage and to earn wrongful gain at the cost of answering OPs.  That all the claims, allegations and contentions made by the complainant in the complaint are completely wrong and denied.  It is denied that there is any manufacturing defect in the handset or there has been any deficiency in services on the part of answering OPs or unfair trade practice conducted by the complainant.  That the complainant has never been misbehaved with and has been given best services by the OPs.  That the complainant is trying to misguide this Forum by making false and baseless allegations without having a single iota of truth and the complainant may be asked to produce strict proof of the same.  That in the light of the preliminary submissions/objections and non parawise reply made herein above it is evident that the complainant is not entitled to get any relief whatsoever.  The contents of the prayer clause are vehemently denied as being baseless and wrong and thus the present complaint is liable to be dismissed.

For the reasons mentioned above, OPs.2 & 3 pray for dismissal of the complaint.

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Sri.Aruna Kumar, Store Manager and Authorized Signatory of OP-1 tendered his evidence by way of affidavit.  Sri.Priyank Chauhan S/o Sh.Ram Pal Singh, Authorized Signatory of OP-3 tendered his evidence by way affidavit.  Both parties have produced certain documents and have submitted their written arguments.  We have also heard oral arguments.

6. The points that arise for our consideration are:

        7. Our answer to the above points are as under:

REASONS

8. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OPs.1, 2 & 3.  The undisputed facts which reveals from the pleadings of the parties goes to show that, the complainant has purchased Sony Z3 (Model No.D6653) Black colour mobile handset vide IMEI No.355098060390254 (herein after referred as handset) from OP-1 by paying an amount of Rs.51,762-90 along with guarantee card.

9. It is the specific contention of the complainant that from the date of purchase the said mobile handset repeatedly switching off.  In this context, he called the customer care on the same day who advised to visit OP-2 who is authorized service centre of OP-3.  Having no other go he called OP-2 and handed over the said mobile handset for repair on 11.05.2015.  In this context job sheet has been issued, which is found at document No.2.  We have gone through the contents of the job sheet wherein the ASC Comments is DATA LOSS APPROVED: DEAD.  Further it is evident that the said mobile set is under warranty period.  After acceptance of the said mobile handset by OP-2 but failed to rectify the defect as promised.  On the contrary the OP-2 adamantly shown negligent attitude and have rudely behaved with complainant.  Being dissatisfied he approached the OP-2 office many times but there was no any positive response.  Hence he issued legal notice, though served did not respond to it. 

10. The main contention taken by the OP-1 is that, it is only manufacturer but however it was informed by OP-1 that the mobile handset in question was repaired to its original condition by OP-2 and was ready for delivery on 10.06.2015 and it was the complainant who was refusing to take delivery of the mobile handset in question.  To substantiate this fact OP-1 has placed reliance on Annexure R-2, which the reply notice issued by OP-3.  As to know when exactly the said mobile handset was got repaired is concerned, we place reliance on the contents of the para-3 of the version filed by OPs.2 & 3 wherein it is stated as under:

“That the complainant herein after enjoying the handset for 7 months approached the Opposite Party No.2 on 11.05.2015 with the issue of “No Power” After the thorough inspection of the handset by the service engineer of the Opposite Party it was discovered that the display of the handset is required to be replaced which was duly replaced by the service engineer of the Opposite Party No.2 on free of cost basis and thereafter, the handset was collected by the Complainant in perfect working condition on 09.06.2015”.

 11. If the contentions of the reply notice found at Ex.R-2 and also the contents of the above para-3 of the version filed by OPs.2 & 3 are taken into consideration there is a conflicting version in respect of delivery of the mobile handset on 10.06.2015 or on 09.06.2015, but para-5 of the version filed by OPs.2 & 3 goes to show that the complainant is not ready to collect the handset and instead demanding the price of the handset and the complainant despite the fact noted above has filed the instant consumer proceedings just to harass the OP.  According to the OPs.2 & 3 after the thorough inspection of the said mobile handset by the service engineer of OPs it was discovered that the display of the handset is required to be replaced which was duly replaced by the service engineer of the OP-2 on free of cost basis.  With regard to collecting the said mobile handset either on 10.06.2015 according to OP-1 or on 09.06.2015 according to OPs.2 & 3, there is no any evidence on record.  If the fact of repair would have been informed to the complainant, certainly he collected the same.  As on the date of handing over the said mobile set to OP-2 to rectify the mistakes it was under warranty period.  Either the manufacturer or service center, seller cannot evade their responsibility to get repaired the said mobile handset in a usable condition if not refund the price/ or else to provide new similar set in the light of the decisions reported at Prabhat Kumar Sinha & ANR. versus Nitish Kumar reported in III (2016) CPJ 239 (NC).  Wherein it was held as under:

Consumer Protection Act, 1986 – Sections 2(1)(f), 2(1)(g), 21(b) – Goods – Computer – Defects – Extended warranty – Rectification not done – Apportionment of liability – Deficiency in service – District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Petitioners being the seller of defective computer were under obligation either to rectify the defects or to replace computer or refund the consideration amount received – So far as liability of manufacturing company is concerned, it is the issue between manufacturing company and dealer for which respondent cannot be made to suffer – Impugned order upheld.

12. Another decision reported in I (2018) CPJ 6A (CN) (HP) in the case of Sushil Kumar V/s Nokia Care Centre relying on the decision of the Hon’ble National Commission, wherein it is held as under:

Consumer Protection Act, 1986-Sections 2 (1)(f), 2 (1)(g), 15-Goods-Purchase of mobile phone-Defective-Non-functioning of mobile-Warranty period-Sent to service centre-Non-rectification of defect-Deficiency in service alleged-Replacement or refund sought-District Forum partly allowed complaint and directed free of cost repairing-Hence appeal-Opposite Party did not give any guarantee of mobile set but has given warranty of mobile- As such Opposite Party is under legal obligation to repair mobile set free of cost during warranty period-Job carried out in handset was satisfactory and he signed at delivery of hand set-Certificate given by him is binding upon him-He cannot be allowed to approbate or reprobate at same time-District Forum passed order with cogent and positive reason-Impugned Order upheld.

13. In the light of the decisions cited supra, we come to the conclusion that, the OPs.1 & 2 who are the sellers and service centre are directed to handover the said mobile handset after rectifying the defect if any to the complainant in a usable condition with an extended warranty of one year, if not, OP-1 is directed to refund the cost of the mobile handset and get it recovered from OP-3 who is manufacturer.  Looking to the circumstances of the case, we do not propose to award any compensation but the cost of litigation is fixed at Rs.3,000/-.  Accordingly we answered point No.1.  

          14. Point No.2: In the result, we passed the following:          

  O R D E R

The complaint filed by the complainant is allowed in part.

OPs.1 & 2 who are the sellers and service centre respectively are directed to hand over the said mobile handset after rectifying the defect if any in a usable condition with an extended warranty of further one year, if not OP-1 is directed to refund the cost of the mobile handset and get it recover from OP-3 who is manufacturer.  Further OPs are directed to pay litigation cost of Rs.3,000/-.

OPs.1 & 2 are directed to comply the order within four weeks from the date of communication of the order.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 31^st day of December 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 19.12.2015.

Sri.Mahesh Chandra H.P

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-1 dated 20.04.2016.

Sri.Aruna Kumar.

Document produced by the Opposite party-1.

Witnesses examined on behalf of the Opposite party-3 dated 01.02.2016.

Sri.Priyank Chauhan.

MEMBER                                                               PRESIDENT

Vln*