DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

Complaint No. CC/14/309 of 05/11/2014

Decided on 13/05/2015

Jatinder aged about 21 years son of Rajinder Kumar, R/o B-38/80, Top Khana More, Jejian Street, Patiala. ….Complainant.

Versus

1. Sahni Mobile Mart, Anardana Chowk, Scooter Market, Bahera road, Patiala, through its Proprietor.

2. Sankaldep Electronics, SCR-9, SST Nagar, Rajpura road, Opp. Iqbal Inn Hotel Patiala, Authorized service center of Sony Electronics.

….Opposite parties.

Complaint under Sections 11 to 14 of the

Consumer Protection Act.

QUORUM

Sh. D. R. Arora, President Smt. Neelam Gupta, Member

Smt. Sonia Bansal, Member

Present:

For Complainant : Sh. K. S. Maan Advocate

For Opposite party no. 1 : Ex-parte.

For Opposite party no. 2 : Sh. Dhiraj Puri Advocate

ORDER

NEELAM GUPTA, MEMBER:

1. The complainant purchased one mobile phone Sony Xperia-Z from Op no.1 vide invoice no.8422 dt.04/12/2013 for an amount of Rs.34500/-. It is averred that after a few months of the said purchase, cracks developed on the scree of the mobile phone and the complainant approached OP no.1, who directed him to approach OP no.2, who is the authorized Service Centre of the company. On 19/07/2014, the complainant deposited the mobile handset with OP no.2 and the complainant was told to collect the mobile phone after 2-3 days. It is further averred that the complainant being a businessman, there were many contact numbers stored in the memory of the said mobile phone. After 2-3 days, the complainant approached OP no.2 who told him to come after 15 days. It is further averred that when the complainant again went to OP no.2 after 15 days, he was again told to come after one month and when the complainant questioned OP no.2 as to why it will take one month more, OP no.2 threw the mobile phone and told that he was not bound to remove the defect in the mobile phone and if at all the complainant wanted to get the defect rectified, he will have to wait for one month. As the complainant's business was suffering, he had to arrange another mobile phone. Again when the complainant went to collect the mobile phone after one month, he was again told to wait for a week. The complainant approached OP no.2 many a times but OP did not rectify the defect. During this period, OP no.2 made an offer to the complainant that if he was ready to pay 80 % value of mobile phone, OP no.2 would deliver a new set for which the complainant became ready and when the complainant offered the money to OP no.2 and requested for the new mobile phone, OP no.2 refused to deliver the same saying that the mobile phone of the same make was not manufactured by the company. As such the complainant suffered a lot of harassment at the hands of OP.

2. On 15/10/2014 the complainant served a legal notice upon the OPs but to no use. Ultimately he approached this Forum u/s 12 of the Consumer Protection Act 1986 ( for short the Act).

3. On notice, OP no.1 failed to appear despite service and was thus proceeded against ex-parte. Whereas OP no.2 appeared through counsel and filed its reply to the complaint.

4. Op no.2 in its written statement submitted that the complainant approached OP no.2 for the first time on 17/12/2013, with the issue of 'slow at start up'. However, upon inspection it was found that the mobile phone in dispute was downloaded with unauthentic softwares. The representative of OP no.2 explained and demonstrated the complainant not to download the same as it affects the performance of the phone. However, OP duly upgraded the software for the proper functioning thereof and returned the mobile phone to the complainant. Thereafter, on 19/07/2014, the complainant again approached OP no.2 and upon its physical inspection, the display of the mobile phone was found to be broken due to its negligent use by the complainant. In such a condition the mobile phone could not be covered under warranty as the same was damaged due to its negligent use by the complainant, which is beyond the control of OP. Considering the same, OP offered the complainant to exchange the mobile phone in question with a re-conditioned handset at a discounted price. Moreover the complainant was offered a new mobile phone at 80% of MRP of the new model in exchange with the subject mobile phone, but the complainant refused to accept the said offer as he was adamant to get the defect rectified on free of cost basis, which was contrary to the term and condition provided by the OP. The terms and conditions are clearly not applicable in cases where the product has been externally damaged by the consumer due to activities such as damage caused by accident or any other external cause which is beyond the control of OP. As such no deficiency in service can be attributed on the part of OP. After denying all other allegations, going against it, it was prayed to dismiss the complaint.

5. In support of his case the complainant produced in evidence his sworn affidavit ex.CA along with documents Ex.C-1 to Ex.C-5 and his counsel closed the evidence. Whereas OP no.2 tendered in evidence Ex.OPA, the sworn affidavit of Sh. Priyank Chauhan, its authorized signatory along with documents Ex.OP-1 to Ex.Op-3 and closed the evidence.

6. Parties failed to file written arguments. We have heard the ld. counsel for the parties and gone through the evidence placed on record.

7. Ex.C-1 is the copy of the Invoice whereby the complainant purchased one mobile phone from OP no.1 for an amount of Rs.34500/- on 4/12/2013. Ex.C-2 is the copy of the job sheet whereby the complainant deposited the mobile phone with OP no.2 on 19/07/2014. Ex.C-2 shows that the mobile phone was received by OP no.2 in a damaged condition.

8. OP no.2 has produced Ex.OP-2 which contains information regarding Sony Mobile phones. Page 12 of Ex.OP-2 deals with limited warranty and condition no.3 mentioned on page 13 of the same provides:-

“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.”

9. Ex.OP-3 is the photograph of the mobile phone showing cracks on the screen of the mobile phone. It is the plea taken by OP no.2 is that the cracks appeared on the screen of the mobile phone due to its negligent use by the complainant, which is not covered under warranty as per condition no.3 mentioned on page 13 of Ex.OP-2. As such OP no.2 cannot be held liable to rectify the defect.

10. As from the photograph Ex.OP-3 cracks were not clear, we asked OP no.2 for the production of the mobile phone in the Forum. Accordingly today OP no.2 produced the same in the Forum. On checking, it was found that although the screen glows on switching on the set but the touch of the screen does not work due to the screen being damaged. In order to see the fractured screen of the mobile phone, we observed in the dim light and when the cracks were clearly visible as light pierced through the cracks. It is very much evident that the screen of the mobile phone got damaged due to some accidental act on the part of the complainant, which rendered the set beyond the warranty and as such OP can not be held liable for the same. The OP had clearly recorded in the job sheet Ex.C-2 dt.19/07/2014 that the set was received in a damaged condition, a fact not controverted by the complainant.

11. In view of the aforesaid discussion, it would appear that the complaint of the complainant is without any basis and the same is liable to be dismissed and is dismissed accordingly.

Pronounced

Dated: 13/05/2015.

Sonia Bansal D. R. Arora Neelam Gupta

Member President Member