DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/158 of 29.7.2015

                                      Decided on:         2.2.2016

Anurag Dubey, aged about 29 years S/o Sh.Akhil Parkash Dubey, resident of H.No.2064/5, Lehal Colony, Patiala.     

                                                                   …………...Complainant

                                      Versus

1.      Sankalp Electronics, SCF-9, SST Nagar, Rajpura Road, Opp. Iqbal Inn., Punjab, Patiala, Sony Service Centre, through its authorized officials.

2.      Sony India Pvt. Ltd., A-31, Mohan Corporative Industrial Estate, Mathura Road, New Delhi(PIN-110044).

3.      M/s Gracy Cards, Mirch Mandi, Sanouri Adda, Patiala.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh. A.P.S.Rajput, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:    Sh.Anurag Dubey, complainant in person.

For Ops No.1&2:         Sh.Dhiraj Puri,Advocate

                                         ORDER

A.P.S.Rajput, PRESIDENT

1. Complainant, Anurag Dubey S/o Sh.Akhil Parkash Dubey resident of H.No.2064/5,Lelhal Colony, Patiala, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 11 to  14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. It is alleged by the complainant that he purchased one mobile hand set make Sony Xperia Z Ultra Black colour, model C6802, bearing IMEI No.357656050300076  vide bill No.529 dated 30.7.2014, in a sum of Rs.34000/- from Op no.3 with a guarantee of one year for the replacement of the mobile hand set on account of any defect in the hand set.
3. It is stated that the complainant faced the problem with the  mobile phone and Op no.1 i.e. the service centre swapped the hand set and replaced the same with new phone vide Sr.No.357656050259686 on 16.5.2015 vide job No.W115043003969.Again in the month of June,2015, the complainant faced the problem of display and auto operate of the keypad in the mobile hand set. Op no.1 swapped the handset on 8.7.2015 and replaced the same with new one having Sr.No.357656054190721 vide its Job No.W115062603760.Again on 16.7.2015 the complainant faced the same problem with the mobile hand set and approached Op no.1 for the rectification of the same. Op no.1 took the mobile hand set of the complainant against job sheet No.W115071602962 and told the complainant that the mobile hand set of the complainant is having the problem of Touch Automatically work and display black when call and stated that it is the manufacturing defect of the Sony Model No.C-6802 and they are unable to repair the same. It is stated that the complainant requested the Ops to replace the hand set with another Sony mobile hand set of the same price or  refund the price of the mobile phone i.e. Rs.34000/-.It is alleged that the complainant also sent e-mail on 17.7.2015 in reply to which the Op stated that they will respond about the complaint of the complainant within 24 hours but nothing was done. Again on 21.7.2015 the complainant sent the reminder through mail, on which the OP assured the complainant to do the needful but to no effect. Thus the act of the Ops amounted to deficiency of service. The complainant prayed for a direction to the ops to pay the cost of the mobile phone,Rs.20,000/- as damages and compensation, Rs.11000/- as cost of litigation and Rs.4200/- as interest @12% per annum on Rs.34000/- i.e. from the date of purchase till realization .
4. Cognizance of the complaint was taken against Ops no.1&2, who appeared and filed the written version. The ops admitted the purchase of the Sony Xperia Z Ultra , bearing model No.C6802 hand set on 30.7.2014 by the complainant with the limited warranty of one year on its products. The relevant terms of warranty provided to the complainant are as under:

“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 material or workmanship, the Sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein”.

Clause 3 of the terms of warranty provides as under:

“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”. It is alleged by the Ops that the handset has been certified by international bodies for certain standards relating to water and dust resistance and these standards are acceptable worldwide, on the basis of which  Op no.2 is making the claim regarding ‘water and dust resistance’. It is submitted by the Ops that for the first time  the complainant approached  Op No.1 on 21.10.2014 with the complaint of Camera sharpness. The service official of the Ops updated the software of the mobile hand set and the complainant collected the mobile hand set on 27.10.2014 in working condition. It is alleged that again the complainant approached Op no.1 on 30.4.2015 with the complaint of “Camera not clear”. It is stated by the Ops that the mobile hand set of the complainant was duly swapped under the terms of the limited warranty and the same was collected by the complainant on 16.5.2015 in perfect condition. It is submitted that on 24.6.2015 , Op no.1 received the complaint of  the mobile hand set “touch not working” and the same was returned to the complainant on 25.6.2015 after updating the software.

5. It is submitted that again the complainant contacted op no.1 on 26.6.2015 with the complaint of “Display problem” with the mobile hand set. It is stated by the ops that Op no.1 for the sake of satisfaction of the complainant swapped the hand set which was collected by the complainant on 8.7.2015 against the job sheet dated 26.6.2015.
6. It is alleged by the  Ops that on 16.7.2015 the complainant again approached Op no.1 with the complaint of “touch works automatically”  and the hand set of the complainant was again updated and the physical condition of the mobile hand set was recorded in the job sheet dated 16.7.2015.Thus there is no deficiency of service on the part of the Ops and the complaint is liable to be dismissed.
7. In support of his complaint, the complaint tendered in evidence his sworn affidavit Ex.C A alongwith the documents Exs.C1 and C6 and closed the evidence.
8. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Priyank Chauhan, authorized representative of Op No.2 alongwith the documents Exs.OP1 and OP2 and closed the evidence.
9. The complainant has filed the written arguments. We have examined the same,heard the complainant in person, counsel for the Ops and gone through the evidence on record.
10. The ld. counsel for the complainant has submitted that the main controversy involved in the present case is; whether the said particular mobile hand set, model is having a manufacturing defect. The ld. counsel in order to prove his case placed reliance on the job sheets i.e Ex.C2 to Ex.C4, which clearly establish that the said mobile handset model had been twice replaced by the OPs and it is the third time that the replaced handset was facing the similar manufacturing problem. The ld. counsel pleaded that it has been established that despite knowing about the manufacturing defect in the particular model, the OPs are not willing to refund the amount and have acted negligently while redressing his grievance. The ld. counsel relied on the judgment passed by Hon’ble National Commission in case titled as; Sony Ericsson India Ltd Vs Ashish Aggarwal,2008 (1)CLT 15(NC),whereby it has been observed, in para no.6 “The above contention  of the petitioner leaves us unimpressed. What we are looking at is the deficiency in service on the part of the petitioner, which is writ large in the case, and duly supported by the factum that they changed the components in the first instance, followed by change of the handset and when that was not working properly, it was further suggested to change the handset, If in these circumstances, the State Commission has awarded refund of the amount which was the consideration paid by the complainant for  purchase of handset, we cannot find any illegality or lack of jurisdiction on the part of the State Commission to call for any interference by us.”The ld. counsel further argued that it is ample clear from the act and conduct of the OPs,that the OPs have committed deficiency of service and the complainant deserves to be compensated for the same.

11.        On the other hand, the ld. counsel for OP no.1 & 2 has stated that the OPs had never indulged in any kind of unfair trade practice or committed deficiency of service. He stated that as and when the complainant reported any problem in the said handset within the warranty period, the OPs promptly rectified the same. The ld. counsel further submitted that the complaint of the complainant was duly addressed, keeping in view the terms and conditions of the warranty. He pleaded that the problem in the said hand set had been occurring due to mishandling of the hand set on the part of the complainant and prayed for dismissal of the same.

12.       After hearing the Ld. Counsel for the parties and going through the pleadings, evidence produced by the parties and the oral arguments and written submissions. It is evident from the service job sheet i.e Ex-C2 to Ex.C4 that the complainant had handed over the said mobile set to the OP no.1 within the warranty period for ratification of the defect. It is also proved that the OPs had replaced the defective mobile hand set twice. It has come to our notice that the particular model of the mobile set has a manufacturing defect, as even after replacing the mobile set, the complainant was facing the same problem in the replaced mobile handsets also. We are of the considerate view that, it was the responsibility of OP no.1 & 2 to refund the consideration paid by the complainant. Hence we are of the opinion that the OP no.1 & 2 has acted negligently and thereby committed deficiency of service.

13.         Accordingly, in view of the aforesaid discussion and the case law cited by the ld. counsel for the complainant, in case titled as; Sony Ericsson India Ltd Vs Ashish Aggarwal(Supra), we direct the OPs no.1 & 2 to refund the amount of consideration i.e Rs.34,000/-. Complainant is also held entitled to the damages suffered by him on account of physical harassment and mental tension. The damages are assessed at Rs. 5000/- and litigation cost of Rs.2500/-.The OPs no.1 & 2 are also directed to comply with this order within 45 days from the date of receipt of the same, otherwise the OPs no.1 & 2 shall be liable to pay interest @6% p.a, till its realization. The present complaint stands accepted.

Pronounced

Dated: 2.2.2016

               Sonia Bansal           Neelam Gupta                        A.P.S.Rajput

        Member                 Member                                  President