DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  30^th  day of May   2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 19/02/2014

               : Sri.V.P.Ananatha Narayanan, Member

                                                      (C.C.No.27/2014)         

R.Balaji

S/o.V.Ramachandran,

40/159, Pattikkara Street,

Palakkad – 14

Palakkad District                                                     -       Complainant

(By Adv.K.Dhananjayan)

V/s

1.Sidhique

   Mini’sChennai Mobiles

   Near Stadium Bus stand,

   Coimbatore Road, Palakkad

   (By Adv.M.Abdul Kaleel)

2.Sony India Limited

   1^st Floor, Trade globe Building,

   AK Road, JB Nagar, Mumbai

   Maharashtra – 400 059

   Rep.by its Managing Director                               -          Opposite parties

(By Adv.S.M.Unnikrishnan)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant has purchased a Sony Xperia Z mobile phone from the 1^st opposite party for Rs.48,500/-. At the time of purchase of the same  the 1^st opposite party assured that the  said phone is having one year replacement warranty. 1^st opposite party was made the complainant to believe that the said phone is water proof and is having free insurance coverage for its breakage, loss or malfunction. By believing the words of the 1^st opposite party and by considering the brand name of the 2^nd opposite party, the complainant bought the said phone by paying a huge amount. The complainant submitted that on 10^th August 2013 the said phone is started showing malfunction due to water penetration. Though the matter was informed to the 1^st opposite party and the phone was handed over to him on 12^th August 2013 for repair or replacement as per the warranty given by him, he kept the phone till 17^th February 2014 by saying that the same was given to the 2^nd opposite party for repair or replacement. But On 17/2/2014, the 1^st opposite  party returned the phone with a broken back cover without any repair or replacement by saying that the same cannot be repaired or replaced. Complainant further submitted that the back cover of the phone was not broken while it was handed over to the 1^st opposite party for repair. The 1^st opposite party promised the complainant that the phone manufactured by 2^nd opposite party is of good quality and will last for more years without any trouble and the same will be replaced or repaired in the event of any defect or accident or breakage and also promised  that the phone is having 100% free insurance coverage.

Complainant submitted that the selling of such costly phones which cannot be repaired and not giving repair or replacement service or assured insurance service is a deficiency on the part of the opposite parties.

Hence the complainant prays for an order directing opposite parties jointly and severally to pay an amount of Rs.48,500/-  towards the cost of phone or direct the opposite parties to replace the phone and  also to pay Rs.5,000/- as compensation to the complainant towards the mental agony and for other inconvenience  and to pay the entire cost of the proceedings to the complainant.

Complaint was admitted and notices  were issued to opposite parties. After receiving the notice, 1^st opposite party did not appear before the Forum. Hence set exparte. 2^nd opposite party appeared before the Forum and  filed their version contending the following:

          2^nd Opposite party contended that they did not market the above mentioned handset.   Opposite party provides a limited warranty on its products and the liability lies in accordance with the terms and conditions of the warranty provided by it and it cannot be held liable for the claims falling outside  the scope of the warranty. From the above stated warranty terms it is clear that in case the customer faces any problem in the product, then he should directly approach the authorized service centers of the opposite party whose details are also provided on the warranty sheet. The dealer who shares principal to principal relationship with the opposite party is only the sales partner of the same and is not authorized to provide after sales services on the products of the opposite party.  In the present case the authorized service centre of the opposite party has not received any complaint with respect to the handset.  The liability of the opposite party arises only when the product is purchased from a dealer authorized by Sony. The complainant purchased the handset from 1^st opposite party who is outside the channel of dealers authorized by Sony.

Since the handset was not purchased from an authorized dealer, any liability arising out of this matter must be borne by 1^st opposite party.   Hence complaint is liable to be dismissed with cost.

Complainant and 2^nd opposite party filed their respective chief affidavits. Ext.A1 was marked from the side of the complainant. Defective mobile was marked as MO1. No documentary evidence was adduced from the side of the opposite party. Complainant filed IA.273/2015 seeking permission to cross examine  2^nd opposite party. IA was allowed. But 2^nd opposite party was not present for cross examination.

The following issues are considered

1.Whether there is any deficiency in service on the part of opposite parties?

2.If so, what is the relief?

Issues 1& 2.

Complainant was heard. We have perused the document filed before the Forum. Ext A1 proves that complainant had purchased Xperia Z mobile from 1^st opposite party for Rs.48500/- with a warranty of one year. Warranty terms and conditions are not produced by the complainant to prove that the defective mobile  was the product of the 2^nd opposite party. While cross examination complainant deposed that ബില്ലും ഇന്സ്ട്രുമെന്‍റും മാത്രം എടുത്തു.  മാന്വല്‍ ഞാന്‍ കടയില്‍ നിന്നു എടുത്തിട്ടില്ല  Being an educated person he ought to have taken the  manual and warranty card issued by the manufacturer. He did not do so. Hence the above statement of the complainant cannot be taken into consideration.   2^nd opposite party contended that 1^st opposite party is not an authorized dealer of the 2^nd opposite party. Since 1st opposite party set exparte, no document before the Forum to defend the contention of the 2^nd opposite party. Moreover in order to prove 2^nd opposite party  is the manufacturer of the defective mobile complainant has not taken any expert opinion. However complainant submitted that 1^st opposite party promised the complainant that, the phone manufactured by 2^nd opposite party is of good quality and will last for more years without any trouble and the same will be replaced or repaired in the event of any defect or accident or breakage and also promised that the phone is having 100 percentage free insurance coverage. Hence we are of the view that in order to get undue profit 1^st opposite party falsely represented that the defective mobile was the product of the 2^nd opposite party and by believing the words of the 1^st opposite party  complainant purchased the mobile. In the above circumstances we are of the view that selling substandard mobile by giving false representation to the customers’,  1^st opposite party indulged in unfair trade practice .

Apart from this, complainant submitted that he had handed over the mobile to the 1^st opposite party on 12-8-2013 and they kept the mobile till     17-2-2014  and after getting the phone without repair he noticed that the back cover of the phone was broken.  From this it is revealed that 1^st opposite party not only repaired the phone or sent it for repair to the authorized service centre but also caused damage to the phone by mishandling. On physical verification it is seen  that  back cover of the mobile was broken and battery of the same was also in leaking condition. From the available evidence we are of the view that the 1^st opposite party also committed deficiency in service on their part. Since 1^st  opposite party set as exparte no contrary evidence to the evidence adduced by the complainant before the Forum.  1^st opposite party has the liability to pay compensation for the deficiency in service to the complainant along with cost of the mobile. No oral and documentary evidences are adduced before the Forum to prove that 2^nd opposite party is the manufacturer of the defective mobile and 2^nd opposite party  has the liability to pay the cost of the mobile or to replace the mobile to the complainant. Hence we are not in a position to attribute deficiency in service on the part of the 2^nd opposite party. Hence complaint against 2^nd opposite party is dismissed. 

In the result complaint is partly allowed. We direct 1^st opposite party to pay Rs.48500/- (Rupees Forty eight thousand and five hundred only)  being the cost of  mobile and Rs.5000/- (Rupees Five thousand only) as compensation for mental agony and Rs.1000/- (Rupees One thousand only)  as cost of proceedings to the complainant.  On payment of the ordered amount, 1^st opposite party is at liberty  to take back the mobile produced before the Forum.  

Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization. 

Pronounced in the open court on this the 30^th  day of May   2016.

                                                                                             Sd/-

                      Shiny.P.R.

                      President   

                           Sd/-

                      Suma.K.P.

                      Member

                         Sd/-

    V.P.Anantha Narayanan

                 Member