Delhi

North East

CC/388/2014

Gaurav Jain - Complainant(s)

Versus

Sai Electonic - Opp.Party(s)

26 Mar 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 388/14

 

In the matter of:

 

	Sh. Gaurav Jain S/o Sh. Satish Kumar R/o- O-8 / C-2 Dilshad Garden Delhi-110095	Complainant
	Versus
1       2           3	Sai Electronics Shop no. 28, Pocket B&E DDA Market, Dilshad Garden Delhi-110095 Importal Services, R-35/2, First Floor Guru Nanakpura, Opp. V3S Mall Near Nirman Vihar Metro Station Laxmi Nagar Delhi Sony India Pvt. Ltd. A-31, Mohan Co-operative Indl. Estate Mathura Road, New Delhi-110044	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

22.09.2014 26.03.2019 26.03.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts giving rise to the present complaint are that the complainant had purchased Sony Xperia U CT 251 model mobile bearing IMEI No. 353561054949106 manufactured by OP3 from OP1 on 20.06.2013 vide invoice no. 38727 for a sum of Rs. 12,500/- inclusive of VAT. However, the subject mobile stopped functioning barely within 5 months of its purchase and when the complainant visited OP1 for the same, OP1 redirected the complainant to OP2, authorized service centre of OP3. There were series of e-mails exchanged between complainant and OP3 between 07.02.2013 till 10.03.2013 regarding defects in the subject mobile and suggestions given by OP3 for taking backup of the mobile before repairing. Thereafter, complainant deposited the subject mobile with OP2 on 13.03.2014 for repairs. However, OP2 did not repair the said mobile and returned the same to the complainant in unrepaired condition. Therefore, the complainant was constrained to file the present complaint before this Forum for issuance of directions against the OPs to either replace the defective mobile phone with a brand new one or in the alternate refund the cost thereof alongwith payment of compensation of Rs. 15,000/- towards mental and physical harassment and Rs. 5,000/- towards litigation charges.

Complainant has attached copy of invoice dated 20.06.2013 for purchase of mobile from OP1, copy of e-mails exchanged between complainant and OP3 in February – March 2013 and copy of job sheet dated 13.03.2013 issued by OP2 for submission of mobile phone shown under warranty.

2. Notice was issued to the OPs on 14.10.2013. OP1 was served on 24.10.2013. OP1 did not appear or filed its written statement. OP2 and OP3 filed joint written statement on 01.12.2013 in which it took the preliminary defence that the complainant despite having been handed over a user manual laying down clear instruction of usage of mobile, failed to maintain the same in good condition and his inability to maintain it in good working condition is apparent from the repair history of the phone which is as follows:-

Repair History:

WO: W113070201042, dated 02 July 2013, ASC: Immortal Service

Symptom: Other phone Hang/Freeze problem/Long Start up

Repair Action: Software Upgrade

Delivered: 02 July 2013

 

WO: W114020900148, dated 09 Feb 2014, ASC: Immortal Services

Symptom: Ear Speaker Problem/ Audio problem with handset

Repair Action: HW Part Defective (Audio jack and Ear Speaker 15.0 Rectangular)

Delivered: 15 Feb 2014

 

WO: W114031403389, dated: 14 Mar 2014, ASC: Immortal Services

Symptom: Can’t charge / Can’t connect charger

Repair Action: Board Swap Handling

Replaced IMEI: 354457053829069

Delivered: 22 Mar 2014

The OPs submitted that the complainant’s grievance was attended to by its customer care department each and every time and solution provided but alleged the complainant failed to handle the mobile phone diligently and mishandled the product. OPs further contended that it was ready to provide post sales services / repairs to the complainant and contacted him several times but complainant failed to respond to OPs or explain the issue with the mobile phone despite OPs having asked him to bring the mobile phone to the customer care centre of OPs vide several e-mails asking the complainant to visit the nearest Sony service centre. Lastly, OPs contended that the subject mobile is out of warranty and therefore cannot be replaced free of cost since the warranty of one year is provided from the date of purchase which has expired and relied upon judgment of Hon’ble Supreme Court in Bharathi Knitting Vs DHL Worldwide Express Courier Division of Air Freight Ltd AIR 1996 SC 2508 for limited liability to the extent of contract and judgment of Hon’ble National Commission in Punjab Tractors Vs Vir Pratap (1997) II CPJ 81 (NC)in which the Hon’ble National Commission had held that where complaint was promptly attendant to by OP and no reliable evidence was produced by the complainant to the contrary, complainant is not entitled to any relief. The OPs urged that the terms and conditions of normal warranty in the case of the complainant’s mobile has been rendered void due to damage resulting from ingression of liquid and therefore OPs cannot be held liable for any grievance for the same. OPs therefore prayed for dismissal of the present complaint denying any deficiency of service whatsoever.

3. Rejoinder to the written statement of OPs was filed by the complainant in reiteration of his grievance and denial / dismissal of defence taken by OPs.
4. Evidence by way of affidavit was filed by the complainant in which the complainant deposed that when the subject mobile stopped functioning, he had immediately contacted customer care of OP3 with his grievance but its service centre i.e. OP2 only carried general inspection and returned the mobile unrepaired. The complainant had to deposit the mobile seven times with OP2 since it was suffering from inherent defect and lastly on 13.03.2014 when the said mobile was facing problem of H/P Jack not working, Key not working, charging Jack not working, auto switch off and hanging problem. OP2 had assured the complainant to repair the same or replace it with a new mobile but did neither nor provided any previous job sheets before 13.03.2013. All complaints made by the complainant about inherent defects in the mobile went unheeded to by OPs while failed to give required service / rectification for the defective mobile. Therefore complainant alleged deficiency of service, unfair trade practice, breach of duty, negligence and cheating on the part of OPs causing him harassment, physical inconvenience and mental injury.
5. Evidence by way of affidavit was filed by OP reiterating the defence taken in its written statement.
6. Written arguments were filed by both the parties in reassertion of their respective grievance / defence. The complainant urged that he had visited OP2 service centre on earlier occasions when the repair work on the subject mobile was carried out thrice on 02.07.2013, 15.02.2014 and 02.03.2014 before 13.03.2014 but does not have job cards for the same. Complainant relied upon the judgment of SCDRC West Bengal in Plaza Mobiles Vs Bhupati Roy Basunia in FA No. 219/2009 decided on 15.09.2009 in case of defective mobile where refund of its cost was ordered by SCDRC.
7. We have heard the arguments addressed by complainant and have perused the documentary evidence/ pleadings placed on record before us.

The factum of purchase of subject mobile is not in dispute by either of the parties.

It can be seen from the jobsheet dated 13.03.2014 filed by the complainant that the subject mobile phone was under warranty when it was submitted for repairs with OP2. We do not appreciate the misguiding tactics adopted by OP3 to ostensibly show as if the subject mobile phone was out of warranty by making a bald allegation of damage resulting from ingression of liquid with no supporting documents to corroborate the same despite having submitted in its written statement vide repair history that when it was deposited on 02.07.2013, 09.02.2014 and 14.03.2014, the problem in the mobile was hanging, freeze, long startup, ear speaker problem/ audio problem and charging problem for which its software was upgraded, audio jack and ear speaker was repaired and board swap was handled and nowhere was liquid damage reported or cited. It was the bounden duty of OP1 as dealer to sell defect free items, OP3 to ensure that goods manufactured and sold by it are as per quality standard & duty of OP2 to hand over the subject mobile phone in duly repaired and functional condition back to the complainant without any inordinate delay. However, in the present case all OPs acted negligently in selling a defective handset and failing to repair the same and a mobile which had to be repeatedly submitted in July for repairs barely two weeks after its purchase in June 2013 as admitted by OP2 and OP3 in their written statement but the recurring problem therein persisted which the OPs failed to resolve and paid no heed to the request of the complainant in this regard speaks volumes for the instrument suffering from irreparable defects. Under these circumstances, it proves beyond doubt that the mobile handset which the complainant had purchased was suffering from whereof defects which was admitted by OP2 and OP3 in its written statement since the defects therein could not be rectified despite repeated submission and the complainant was deprived of service of his handset in this duration and the mobile phone in fact is dysfunctional till date. The OPs cannot be permitted to hold the complainant at ransom by their callous attitude in attending the problem of consumer. Therefore, selling defective mobile phone and inordinate delay and failure to repair the phone on the part of OP2 tantamounts to deficiency in service on the part of OPs giving rise to the present complaint when the complainant failed to get any positive response and lost faith in OPs owing to their pathetic and poor service.

 

The Hon’ble National Commission in Sony Ericssion India Ltd. Vs Ashish Aggarwal (2017) IV CPJ 294 (NC) held that the fact that the component of the new phone had to be changed proved deficiency on the part of OP and upheld the decision of Hon’ble State Commission ordering refund of the consideration amount paid by the complainant for purchase of handset. Therefore appreciating the facts of the case and documentary evidence placed on record, this issue is decided in the favour of the complainant and against OPs in as much as we are of the view that the subject mobile suffered from the manufacturing defect since the mobile had to undergo software upgrade barely within two weeks of its purchase but the defects therein still could not be rectified despite repeated submission for repairs.

As regards the apportionment / determination of liability of dealer and manufacturer, the Hon’ble Supreme Court in landmark judgment of Jose Philip Mampillil Vs. Premier Automobiles Ltd. AIR 2004 SC 1529 held that for manufacturing defect, manufacturer and dealer are jointly and severally liable. The Hon’ble National Commission has also held this view in catena of judgment viz Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) in which the Hon’ble National Commission held that the petitioner being the seller of a defective computer under warranty was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. The Hon’ble National Commission in Ashoke Khan Vs. Abdul Karim (2006) 1 CPR 173 (NC) held that for wrong committed by agent or dealer, consumer is entitled to have reimbursement from manufacturer and dealer as their liability is joint and several. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several. An agent who sales a product, is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. This view was held by Hon’ble National Commission in Emerging India Real Assets Pvt Ltd. and ANR Vs. Kamer Chand and anr in RP no 765/16 decided on 30.03.2016. In view of settled proposition of law, as discussed exhaustively in the aforementioned judgment of Hon’ble Supreme Court and Hon’ble National Commission, liability of all OPs is joint and several and coextensive qua the complainant. This issue is therefore decided in favour of complainant holding all OPs jointly and severally liable for deficiency of service.

In the present case in view of the permanent deficiency in the functioning of subject mobile which could not even last one month, requiring repeated repairs as admitted even by OP3 and still not working satisfactorily, we are of the considered opinion that OP1, OP2 and OP3 are guilty of deficiency of service in having sold the inherently defective mobile and failing to repair the same in capacity of dealer, service centre and manufacturer respectively to the complainant and therefore jointly and severally liable for the same.

We therefore direct OP1, OP2 & OP3 jointly and severally to refundRs. 12,500/- to the complainant towards cost of the defective mobile. We further direct all OPs jointly and severally to pay a sum of Rs. 5,000/- as compensation for mental pain and financial agony and Rs. 2,000/- towards litigation charges to the complainant.

8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on  26.03.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member