DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
CC.No.266 of 02-07-2013
Decided on 09-12-2013
Jagmit Singh aged about 32 years S/o Tarsem Singh R/o H.No.21102, Gali No.9-B, Ajit Road, Bathinda.
........Complainant
Versus
1.Samsung Smart Phone Cafe, Shop No.75-78, Opp. Jagbani Office, Baba Farid Market, Near Kotwali, Faridkot, through its Proprietor/Partner.
2.Adev Electronics, Shop No.20, Krishna Market, Bibiwala Road, Bathinda, through its Proprietor/Partner.
3.Sony India Pvt. Ltd. Regd. Office:A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044, through its Managing Director/Chairman.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Vikas Singla, counsel for the complainant.
For Opposite parties: Sh.Rohit Jain, counsel for the opposite party No.2.
Sh.Vinod Garg, counsel for the opposite party No.3.
Opposite party No.1 ex-parte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The instant complaint has been filed under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act') by the complainant. The brief facts of the complaint are that being allured by the advertisements of the opposite party No.3, the complainant has purchased one mobile handset make Sony Xperiaz, Model C6602, bearing IMEI No.3556605-120053-2, TC No.3413W08202975, S/N BX903EVCCQ for Rs.38,000/- vide bill No.5084 dated 1.4.2013 from the opposite party No.1, manufactured by the opposite party No.3 with one year guarantee. At the time of the purchase of the abovesaid mobile handset, the opposite party No.1 assured the complainant that it is of the good quality and there is no complaint regarding its functioning and it is a water resistant mobile handset and assured for the best services. On the inducement of the opposite party Nos.1 and 3, the complainant purchased the abovesaid mobile handset. The complainant started using the abovesaid mobile handset, it started creating the problems in its functioning as it used to switch off and restart automatically. The complainant approached the opposite party No.1 on 16.4.2013, it asked him to approach the opposite party No.2, the authorized service centre of the opposite party No.3. The complainant approached the opposite party No.2 on 16.4.2013 itself, it returned him the abovesaid mobile handset within 15 minutes by providing some formal checking and cleaning and assured him that there would be no complaint in future in it regarding its functioning. On 21.5.2013, the abovesaid mobile handset again stopped functioning and became dead. The mobile handset in question did not restart despite best efforts of the complainant and there was no display on it. The complainant again approached the shop of the opposite party No.2 on 22.5.2013, it after checking the abovesaid mobile handset found it to be dead and proclaimed that the abovesaid mobile handset is water affected. The complainant requested the opposite party No.2 that the abovesaid mobile handset is not water affected, the opposite party Nos.1 and 3 are proclaiming the same is a water resistant, as such the question of developing any defect due to the water in it cannot arise. The complainant lodged the complaint to the opposite party No.3 on the customer care No.180030002800 vide complaint No.W113052200237, the opposite party No.2 retained the abovesaid mobile handset vide job sheet dated 10.6.2013 against the same complaint and asked him to come after few days. Since 10.6.2013, the abovesaid mobile handset is in the possession of the opposite party No.2. The complainant visited time and again to the shop of the opposite party No.2, but till date the opposite party No.2 has failed to get replaced the abovesaid mobile handset to him and has been putting off the matter on one or the other pretext. The complainant has purchased the abovesaid mobile handset only on 1.4.2013 i.e. before 3-4 months from the date of becoming it dead. The complainant repeatedly requested the opposite party No.2 to repair the abovesaid mobile handset as there is some manufacturing defect as a result of which, the same is not switching on, but the opposite party No.2 did not pay any heed to his requests. The complainant also requested the opposite party Nos.1 and 2 to refund the amount of the abovesaid mobile handset, but to no avail. Hence the complainant has filed the present complaint to seek the directions to the opposite parties either to replace the abovesaid mobile handset or to refund its price i.e. Rs.38,000/- alongwith cost and compensation.
2. Registered notice has been sent to the opposite party No.1 on dated 23.8.2013 vide postal receipt No.A RP276732743IN, but despite receiving the summons, none appeared on behalf of the opposite party No.1 before this Forum, hence ex-parte proceedings are taken against the opposite party No.1.
3. The opposite party No.2 after appearing before this Forum has filed its separate written statement and pleaded that the complainant never visited it on 16.4.2013 as alleged by him. One Ravi Kumar visited the opposite party No.2 after office hours on 15.4.2013 alongwith mobile handset in question. The opposite party No.2 accepted the abovesaid mobile handset and filled up the hand written service job card but was unable to enter the complaint in the computer system as the office time was over. On the next day i.e. 16.4.2013, the complaint has been entered in the computer system. At the time of accepting the mobile handset in question, the service engineer found it out of warranty on 15.4.2013 and told to Ravi Kumar that he has to spend the service charges/expenses for its repair. Mr.Ravi Kumar left the abovesaid mobile handset with the opposite party No.2 with the message that he would inform it within a day or two and later on he collected the abovesaid mobile handset from it un-repaired as he was not willing to pay the repair charges. On 22.5.2013, one Sushil Kumar visited the opposite party No.2 with the abovesaid mobile handset, after checking the same the service engineer found having water ingression and scratched. Therefore the abovesaid mobile handset has been declared out of warranty. No doubt the opposite party No.1 claims the abovesaid mobile handset is water and dust resistant, but the same is not claimed as 'water proof'. The abovesaid mobile handset is water and dust resistant only in the certain conditions that are duly mentioned in the booklet, provided with the mobile handset in question to the complainant. If those conditions are not followed by the complainant, the abovesaid mobile handset can get water logged. In the present case from the inspection of the abovesaid mobile handset, it shows that the same has been mishandled by the complainant or some other person, due to which, it is water logged. While bringing the abovesaid mobile handset on 22.5.2013, Sushil Kumar disclosed that Mr.Ravi Kumar got the same repaired from some unauthorized person during its previous problem occurred on dated 15.4.2013. Later on Sushil Kumar himself was having bet with his friends that the abovesaid mobile handset is water proof, so he dropped the same in the water for couple of hours to win the bet and later on when he took the abovesaid mobile handset from the water, it was not working and thereafter he approached the opposite party No.2. As the mobile handset in question was got repaired from some unauthorized person, so it became out of warranty. The opposite party No.2 admitted the fact that the abovesaid mobile handset is lying with it as nobody has approached it to collect the same. As per the terms and conditions of the warranty the complainant has to bear the expenses for the repair of the abovesaid mobile handset if it is out of warranty. The opposite party No.2 has no authority to replace the abovesaid mobile handset or refund its price. There is no manufacturing defect in the abovesaid mobile handset.
4. The opposite party No.3 has filed its separate written statement and pleaded that previously the mobile business under the brand name of 'Sony' was under Sony Mobile Communications India Pvt. Ltd. and Sony India Pvt. Ltd. was a different entity. However w.e.f 1.9.2013 vide order dated July 23, 2013 passed by the Hon'ble High Court of Delhi, Sony Mobile Communications India Pvt. Ltd. has amalgamated into Sony India Pvt. Ltd., whereby Sony Mobile Communications India Pvt. Ltd. ceased to exist. The opposite party No.3 is a company incorporated under the provisions of the Companies Act, 1956 having its office available at, A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044. The opposite party No.1 is the authorized dealer and the opposite party No.2 is the authorized service centre of the opposite party No.3. The opposite party No.3 further pleaded that the complainant has purchased one Sony Ericson android operating based mobile handset, model C6602, Xperia Z bearing Sr. No.355666051200532 on dated 1.4.2013 after a detailed demonstration of the features, functions, applications by the opposite party No.1 and satisfying himself with its condition. The opposite party No.3 provides one year warranty on its product from the time of its purchase and the liability strictly lies in according to 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. As per terms of warranty provided by the opposite party No.3 to the complainant:-
'Subject to the conditions of this Limited Warranty, Sony Mobile Communications India Pvt. Ltd. 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 Mobile authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein'.
The opposite party No.3 has provided 'User Guide' alongwith the abovesaid mobile handset, which mentions the precautions that one should take while using the phone, and if a person does not comply with the same then the opposite party No.3 is not liable for any damage/defect in the product. Further, this handset has been certified by the international bodies for the certain standards relating to water and dust resistance and these standards are acceptable worldwide. On the basis of these certifications, the opposite party No.3 is making the claim regarding the water and dust resistance. The relevant portion of the 'User Guide' is reproduced hereunder:-
“Never submerge the device, the micro USB port, the micro SD card, the micro SIM card or the handset connector in water, expose the device to any liquid chemicals, or expose your device to moist environments with extreme high or low temperatures. If water or liquid gets on the micro USB port, the micro SD card, the micro SIM card and the headset connector, wipe it off with a dry cloth. The water resistance of the micro USB port, the micro SD card, the micro SIM card and the headset connector is not guaranteed in all environments or conditions.
If water gets on the speaker, dry the speaker for approximately three hours before using it again.
All compatible accessories, including batteries, chargers, hands free devices, micro USB cables, micro SIM cars and micro SD cards are not dust and water resistant on their own.
Your warranty does not cover damage or defects cause by abuse or improper use of your device. If you have any further questions about the use of your products, refer to our Customer support service for help.
IP (Ingress Protection) rating
Your device has an IP rating, which means it has undergone certified tests to measure its resistance levels to both dust and water. The first digit in the two-digit IP rating indicates the level of protection against solid objects, including dust. The second digit indicates how resistant the device is to water. The higher the numbers, the higher the respective protection.
The IP rating of your device are IPX5, IPX7 and IP5X. This means that your device is dust protected and is protected against the effects of immersion and low pressure water stream. So you can use the device in extreme weather conditions, for example, when it's snowing or raining, or when humidity levels are high. You can also use the device in dusty or sandy environments, and when your fingers are wet.”
As per Clause 3 of the terms and conditions of the warranty, any failure in the produce arising out of damage caused by ingress of liquid would render the normal warranty void. The term of Clause 3 laid down under the warranty terms is:-
“Clause 3:-The 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 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.”
The obligation of the opposite party No.3 under the terms and conditions is to repair or replace the abovesaid mobile handset as the product lies outside the scope of the warranty period. The defect in the abovesaid mobile handset has arisen due to the ingress of liquid, due to which its liquid indicator was red. The opposite party No.3 has referred the law laid by the Hon'ble Supreme Court of India in the case cited as Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., AIR 1996 SC 2508. As a goodwill gesture towards their consumers, the opposite party No.3 is still ready and willing to offer the complainant a special discount of 20% on the MRP of any Xperia model with the normal full warranty in exchange with the mobile handset in question. This offer of discount has been made only in order to maintain the customer satisfaction and was not for the admission of any liability on the part of the opposite party No.3. There is no expert evidence on file to prove that there is manufacturing defect in the product in question. To support its version the opposite party No.3 has relied upon various authorities. On 16.4.2013, the complainant visited the authorized service centre of the opposite party No.3 with the symptom of no power and display. On the inspection of the abovesaid mobile handset, the complainant was informed that it cannot be repaired as it damaged due to the liquid ingression. The un-serviced mobile handset has been delivered to the complainant on 18.4.2013. The complainant again visited the authorized service centre on 10.6.2013, it informed him that his mobile handset cannot be repaired as the same is damaged due to liquid ingression.
5. The parties have led their evidence in support of their respective pleadings.
6. Arguments heard. The record alongwith written submissions submitted by the parties perused.
7. Admittedly, the complainant has purchased one Sony Ericson android operating based mobile handset, model C6602, Xperia Z bearing Sr. No.355666051200532 for Rs.38,000/- vide bill No.5084 dated 1.4.2013, from the opposite party No.1, manufactured by the opposite party No.3 with one year warranty.
8. The submission of the complainant is that at the time of selling of the abovesaid mobile handset, the opposite party No.1 induced him that it is a water resistant mobile handset, but it started giving the problems in its functioning as it used to switch off and restart automatically. The complainant approached the opposite party No.1 on 16.4.2013, it asked him to approach the opposite party No.2, it returned him the abovesaid mobile handset within 15 minutes by providing some formal checking and cleaning and assured him that there would be no complaint in future in it regarding its functioning. On 21.5.2013, the abovesaid mobile handset again stopped functioning and became dead. The mobile handset in question did not restart despite best efforts of the complainant and there was no display on it. The complainant again approached the shop of the opposite party No.2 on 22.5.2013, it after checking the abovesaid mobile handset found it to be dead and proclaimed that the abovesaid mobile handset is water affected. The complainant requested the opposite party No.2 that the abovesaid mobile handset is not water affected as the opposite party Nos.1 and 3 are proclaiming the same is a water resistant, as such the question of developing any defect due to the water in it cannot arise. The complainant lodged the complaint to the opposite party No.3 on the customer care No.180030002800 vide complaint No.W113052200237, the opposite party No.2 retained the abovesaid mobile handset vide job sheet dated 10.6.2013 against the same complaint and asked him to come after few days. Since 10.6.2013, the abovesaid mobile handset is in the possession of the opposite party No.2. The complainant visited again and again to the shop of the opposite party No.2, but the opposite party No.2 has failed to rectify the defect in the abovesaid mobile handset.
9. On the other hand the submission of the opposite party No.2 is that the complainant never visited it on 16.4.2013 as alleged by him. One Ravi Kumar visited the opposite party No.2 after office hours on 15.4.2013 alongwith mobile handset in question. The opposite party No.2 accepted the abovesaid mobile handset and filled the hand written service job card but was unable to enter the complaint in the computer system as the office time was over and on the next day i.e. 16.4.2013, the complaint has been entered in the computer system. At the time of accepting the mobile handset in question, the service engineer found it out of warranty on 15.4.2013 and told to Ravi Kumar that he has to spend the service charges/expenses for its repair. Mr.Ravi Kumar left the abovesaid mobile handset with the opposite party No.2 with the message that he would inform it within a day or two and later on he collected the abovesaid mobile handset from it un-repaired as he was not willing to pay the repair charges. Thereafter one Sushil Kumar visited the opposite party No.2 on 22.5.2013 alongwith the abovesaid mobile handset, after checking the same the service engineer found having water ingression and scratched and declared the abovesaid mobile handset is out of warranty. The abovesaid mobile handset is water and dust resistant only in the certain conditions that are provided with the mobile handset in question to the complainant. If those conditions are not followed by the complainant, the abovesaid mobile handset can water logged. The inspection of the abovesaid mobile handset shows that the same has been mishandled by the complainant or some other person. On 22.5.2013, Sushil Kumar disclosed that Mr.Ravi Kumar got the same repaired from some unauthorized person during its previous problem occurred on dated 15.4.2013. Later on Sushil Kumar himself was having bet with his friends that the abovesaid mobile handset is water proof, so he dropped the same in the water for couple of hours to win the bet and later on when he took the abovesaid mobile handset from the water, it was not working and thereafter he approached the opposite party No.2. The abovesaid mobile handset is lying with the opposite party No.2 as none has approached it to collect the same. As the mobile handset is out of warranty, the customer has to bear the expenses for its repair.
10. The submission of the opposite party No.3 is that although the mobile handset in question is out of warranty due to water ingression yet it is still ready and willing to offer the complainant a special discount of 20% on the MRP of any Xperia model with the normal full warranty in exchange with the mobile handset in question. This offer of discount has been made only in order to maintain the customer satisfaction and has not for the admission of any liability on the part of the opposite party No.3. There is no manufacturing defect in the mobile handset in question. The defect regarding the water ingression has occurred due to the negligence on the part of the complainant or any other person. The complainant has not placed on file any expert evidence to prove that there is manufacturing defect in the mobile handset in question. The opposite party Nos.1 and 3 have made the claim of water resistant but that is under certain conditions.
11. A perusal of record placed on file shows that the complainant has purchased the abovesaid mobile handset on 1.4.2013 and one Ravi Kumar has taken the abovesaid mobile handset on 16.4.2013 to the opposite party No.2 for its repair as there was 'no display, no power', the job sheet in this regard has been issued by the opposite party No.2 vide Ex.OP2/3, in this job sheet warranty category is mentioned as warranty void. Again the abovesaid mobile handset has been taken by one Sushil Kumar on dated 22.5.2013 vide Ex.C3, in this job sheet it has been specifically mentioned that Warranty Category:-Warranty void and Condition of set:-Scratched, (Liquid ingression), which shows that the abovesaid mobile handset was having liquid ingression. The complainant has specifically argued that the abovesaid mobile handset is water resistance and water cannot entered in it, so there is no question of becoming defective of the abovesaid mobile handset due to the water logging, whereas the submission of the opposite party Nos.2 and 3 are that the abovesaid mobile handset is dust resistance, but as the complainant has mishandled it and has kept in the water for couple of hours as such due to mishandling on his part the abovesaid mobile handset became defective due to water logging. Moreover the abovesaid mobile handset is an electronic device and it is a matter of common knowledge that whenever any electronic device comes into the contact of the water or there is water logging in it, it becomes defective and its warranty also becomes void. The abovesaid mobile handset has been taken to the opposite party No.2 vide Ex.OP2/2 on dated 15.4.2013 and it was in the dead condition. At that time also the abovesaid mobile handset has been taken by Ravi Kumar. The opposite party No.2 has placed on file Ex.OP2/4. The relevant portion of Ex.OP2/4 is reproduced:-
“Your device has an IP (ingression Protection) of IP5X, IP5X and IPX7. This means that your device is dust protected and is protected against the effects of immersion in water in depths of between 0 to 100 cm for up to 30 minutes, and is also protected against the effects of a low pressure water stream.”
As per important information, Ex.OP3/4, the warranty condition No.3 is:-
“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 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.”
In important information, Ex.OP3/5, it is mentioned:-
“Water resistance:-
In order for your device to be water resistant, the covers for the micro USB port, the microSD card, the micro SIM card and the headset connector must be firmly closed.
….Never submerge the device, the micro USB port, the micro SD card, the micro SIM card or the handset connector in water, expose the device to any liquid chemicals, or expose your device to moist environments with extreme high or low temperatures. If water or liquid gets on the micro USB port, the micro SD card, the micro SIM card and the headset connector, wipe it off with a dry cloth. The water resistance of the micro USB port, the micro SD card, the micro SIM card and the headset connector is not guaranteed in all environments or conditions.
IP (Ingress Protection) rating
Your device has an IP rating, which means it has undergone certified tests to measure its resistance levels to both dust and water. The first digit in the two-digit IP rating indicates the level of protection against solid objects, including dust. The second digit indicates how resistant the device is to water. The higher the numbers, the higher the respective protection.
The IP rating of your device are IPX5, IPX7 and IP5X. This means that your device is dust protected and is protected against the effects of immersion and low pressure water stream. So you can use the device in extreme weather conditions, for example, when it's snowing or raining, or when humidity levels are high. You can also use the device in dusty or sandy environments, and when your fingers are wet.....
Resistance to solid objects and dust Resistance to water
IP0X, No special protection IPX0, No special protection
IP1X, Protected against solid objects>50 mm IPX1, Protected against dripping
in diameter water
IP2X, Protected against solid objects> 12.5 mm IPX2, Protected against dripping
in diameter water when titled up to 15 degrees from normal position
IP3X, Protected against solid Objects> 2.5 mm IPX3, Protected against spraying
in diameter water
IP4X, Protected against solid Objects> 1 mm IPX4, Protected against splashing
in diameter water
IP5X, Protected against dust; limited ingress IPX5, Protected against water jet
(no harmful deposit) spray
IP6X, Dust tight IPX6, Protected against heavy jet spray
IPX7, Protected against the effects of immersion
IPX8, Protected against submersion.”
Moreover vide Ex.OP3/6 and Ex.OP3/7, there is indicator showing whether there is water logging or not. The indicator shows red that means the water has entered in the abovesaid mobile handset. As per the above mentioned condition of IP, the water cannot entered in the abovesaid mobile handset unless and until mishandling be done on the part of the complainant or any other person.. Sushil Kumar has told the opposite party No.2 that he has kept the abovesaid mobile handset in the water for couple of hours to win the bet and prior to this the abovesaid mobile handset has been got repaired by Ravi Kumar on 15.4.2013 from some unauthorized person.
12. Thus in view of what has been discussed above we are of the considered opinion that the defect has occurred in the abovesaid mobile handset due to the mishandling on the part of the complainant or any other person to whom the complainant has handed over the abovesaid mobile handset and the same has been found water logging as red indicator has shown by it, thus the warranty of the abovesaid mobile handset became void. However, the opposite party Nos.2 and 3 are service providers. The complainant can get his mobile handset repaired from the opposite party Nos.2 and 3 after paying the repair charges to them or can accept the offer given by the opposite party No.3 in its written statement.
13. As discussed above there is no deficiency in service on the part of the opposite parties. Thus this complaint is dismissed without any order as to cost.
14. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum:-
09-12-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
