Tamil Nadu

South Chennai

114/2011

Madhavan - Complainant(s)

Versus

Sony Ericsson (India) accel-Chennai GR & Other - Opp.Party(s)

G.Krishnamurthy

22 Jan 2020

ORDER

                                                                              Date of Filing  : 12.05.2011

                                                                               Date of Order : 22.01.2020

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER

 

C.C. No.114/2011

DATED THIS WEDNESDAY THE 22^ND DAY OF JANUARY 2020

                                 

Mr. Madhavan,

Represented by its President

Mr. C. Paul Barnabas,

The Tamil Nadu Consumer Protection Organization,

No.193-B, Railway Colony,

Gandhi-Irwin Road,

Egmore,

Chennai – 600 008.                                                  .. Complainant.

                                                                                         ..Versus..

 

1. Sony Ericsson Mobile Communications,

Rep. by its General Manager,

Head Office,

Building No.9A, 10^th Floor,

DLF Cyber City Sector-25A,

Gurgaon – 122 002,

Haryana,

India.

 

2. Sony Ericsson (India) Accel-Chennai GR,

Represented by its Manager,

(Customer Care),

No.160, Thiru Building,

Greams Road,

Chennai – 600 006.

 

3. Universal Showroom,

Rep. by its Manager,

Triplicane,

Chennai – 600 005.                                            ..  Opposite parties.

          

For the complainant                 :  Party in person

For 1^st  & 2^nd opposite parties  :  Mr. K. Hariharasubramanian,  

                                                     Manager

Counsel for 3^rd opposite party :  Exparte

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to replace the Sony Ericsson Mobile handset bearing No.NAITE356813037291669 or to refund the cost price of Rs.6,600/-, to pay a sum of Rs.2,00,000/- towards compensation for damages, mental agony, tension and deficiency in service with cost of Rs.5,000/- to the complainant.

1.    The brief averments of the amended complaint  are as follows:

The complainant submits that he purchased a Sony Ericsson Mobile handset bearing No.NAITE356813037291669 on 08.02.2010 for a sum of Rs.6,600/- from the 3^rd opposite party vide bill No.1928332. The complainant submits that after 2 months of use, the handset became dysfunctionial and developed problems like White Display & Auto Off and it was given for service on 10.05.2010 to the 2^nd opposite party.   After few days again on 18.06.2010, the handset became dead and the complainant could not make use of the instrument.   Even after repeated requests and demands, the 1 & 2^nd opposite parties have not come forward to rectify the mobile phone or replace the mobile phone or refund the amount.  Hence, the complainant issued notice dated:16.07.2010 to the 2^nd & 3^rd opposite parties and the 2^nd opposite party changed the panel of the handset delivered to the complainant which also remained the same problem. Thereafter, the complainant sent a notice dated:01.09.2010 to the 2^nd opposite party for which, there was no response.   Hence, the complaint is filed.

2.      The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   It is an admitted fact by the 1^st opposite party that the complainant given his mobile handset on 10.05.2010 to the 2^nd opposite party with the problem of “White Display & Auto off” vide work order No.SE10AGR18450 and second work order No.SE310AGR21319, the problem rectified through “Software Upgrade” and delivered to the complainant.   At the time of delivery, the handset was working properly and the same was duly checked by the complainant.  The 1^st opposite party states that he never received any mail/ letter in this regard that the complainant is facing the same problem repeatedly and ever requested for replacement.  Therefore, there is no deficiency in service on the part of the 1^st opposite party.   Hence, the complaint is liable to be dismissed.

3.      The brief averments in the written version filed by the  2^nd  opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 2^nd opposite party states that the 2^nd opposite party is registered under the Companies Act.    The 2^nd opposite party states that the opposite party has complied with the warranty stipulations diligently.   The complainant has to prove the claim of inherent manufacturing defect for replacement through expert evidence.   The 2^nd opposite party denied that there is any deficiency in services rendered by the opposite party and the mobile phone has any manufacturing defects.  The 2^nd opposite party states that for claiming any relief for manufacturing defect, the complainant has to submit the mobile phone before this Forum for expert opinion.  It is submitted that no cause of action has been satisfactorily set out by the complainant.   The “bundle of essential facts” which the complainant must prove to establish that there were defects in the mobile phone, deficiencies in service, false assurances by the opposite parties or unfair trade practices is entirely missing from the complaint.  As the complaint does not disclose a cause of action, this Hon’ble Forum must reject/ dismiss the complaint.  No evidential support has been provided to establish any of the alleged defects, deficiencies in services, false assurances or unfair trade practices.  The opposite parties have on all occasions duly attended to the complainant’s concerns.  Therefore, there is no deficiency in service on the part of the 2^nd  opposite party.  Hence the complaint is liable to be dismissed.

4.     Inspite of receipt of notice, the 3^rd opposite party has not chosen to appear before this Forum.  Hence the 3^rd opposite party was set Ex-parte for non appearance.

5.     In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A8 are marked.  Eventhough sufficient time was given, the 1^st opposite party has either come forward to file his proof affidavit and hence, proof affidavit on the side of the 1^st opposite party is closed on 17.12.2012.  Proof affidavit of the 2^nd opposite party is filed and no documents filed and marked on the side of the 2^nd opposite party.

6.      The points for consideration is:-

1. Whether the complainant is entitled to replace the handset or alternatively get refund of the cost of Rs.6,600/- as prayed for?
2. Whether the complainant is entitled to a sum Rs.2,00,000/- towards compensation with cost of Rs.5,000/- as prayed for?

7.      On point:-

Both complainant and 2^nd opposite party filed their respective written arguments.   The 1^st opposite party has not filed proof affidavit and written arguments.   The 3^rd opposite party remained Ex-parte.  Perused the records namely the complaint, written versions, proof affidavits, documents etc.  Admittedly, the complainant purchased a Sony Ericsson Mobile handset bearing No.NAITE356813037291669 on 08.02.2010 for a sum of Rs.6,600/- from the 3^rd opposite party vide bill No.1928332 vide Ex.A1.  Since the mobile handset became dysfunctional within two months from the date of purchase, it was given for service on 10.05.2010 to the 2^nd opposite party vide Work Order No.SE310AGR18450 as ‘White Display & Auto Off’ reason as per Ex.A2.   After few days, again the handset became dead and it was given for service vide Work Order No.SE310AGR21319 dated:18.06.2010 and 21.07.2010 which are all admitted facts.  The complainant further submits that since the above said service/ repair could not make the instrument working; the complainant also reported the issue to the 2^nd opposite party through email and requested to replace it with a new one despite warrant is in alive.   But the opposite parties failed to replace it with a new one proves deficiency in service.  Hence, the complainant constrained to issue notice through the Tamil Nadu Consumer Protection Organisation dated:01.09.2010 to the 2^nd & 3^rd opposite parties as per Ex.A6 to replace the complainant’s mobile with a new one.  Ex.A7 is the acknowledgment card from the 2^nd opposite party.   The 2^nd opposite party had agreed to and replaced the mobile by just changing the panel of the handset delivered to the complainant which also had the same problem.   Therefore, the complainant issued final notice dated:01.09.2010 to the 2^nd opposite party for which, there was no response.  The 1^st & 2^nd opposite parties had committed deficiency in service by not rectifying the defect in the handset which is under warranty period and the 3^rd opposite party committed unfair trade practice which caused mental agony to the complainant.  Hence the complainant is constrained to file this case, claiming replacement of the handset alternative refund of a sum of Rs.6,600/- towards the cost of the mobile phone with compensation of Rs.2,00,000/- and cost of Rs.5,000/-.

8.     The contention of the 2^nd opposite party is that the 2^nd opposite party is registered under the Companies Act.  The complainant is not entitled to give evidence before this Forum through Power of Attorney as per the 2011 (2) CPR 97 National Commission Order.   Further the contention of the 2^nd opposite party is that the opposite party has complied with the warranty stipulations diligently.   The complainant has to prove the claim of inherent manufacturing defect for replacement through expert evidence.   The complainant has not taken any steps to prove the manufacturing defect by way of expert opinion.  Therefore, the complainant is not entitled for replacement of the mobile on the basis of manufacturing defect but admittedly, the complainant handed over the handset for service / repair which ended in vain.   The change of display and continuous vibration are not the manufacturing defect but it was not rectified.  The said defects also duly rectified by these opposite parties during the repeated services but there is no proof.  Certain usage malfunctions and unwarranted software downloading shall not be treated as a default and the instrument cannot be treated as defective.  But the 2^nd opposite party has admitted that the mobile was brought to their service centre for repair on four occasions which is also apparently clear from the Work Orders namely Ex.A2 to Ex.A4 and was not rectified.   Further the contention of the 2^nd opposite party is that the manufacturing defect needs expert opinion.  Mere speculations of assertion and assessment shall not prove the manufacturing defect as per Section 13 of the Consumer Protection Act, 1986 but the apparent defects need not be proved by expert evidence.  The 2^nd opposite party had carried out the repeated service whenever the complainant approached with the handset  according to the warranty stipulations.   Further the contention of the 2^nd opposite party is that it is an admitted fact by the complainant himself in the complaint that he was given a replacement but the allegation that it was a panel changed mobile shall be proved by the complainant through expert opinion.  But the contention of the complainant is that the said mobile also faced the same problem which is not denied by the opposite parties.  The complainant has not taken any steps to prove such allegation of panel changed mobile was given by way of replacement.  But on a careful perusal of the records, it is seen that within three months the mobile had problem of “can’t power on (phone is dead)”.  Therefore, it shows that there is some problem continuing in the complainant’s mobile which could not be rectified even after several services by the 2^nd opposite party proves that the 2^nd opposite party sold the defective mobile and also committed deficiency in service.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties shall replace the complaint mentioned mobile within one month  from the date of receipt of the order failing which, the opposite parties shall pay a compensation of Rs.10,000/- with cost of Rs.5,000/-.

In the result, the complaint is allowed in part.  The opposite parties 1 to 3 are jointly and severally liable to replace the defective Sony Ericsson Mobile handset bearing No.NAITE356813037291669 with a brand new one within one month from the date of receipt of the order failing which, to refund the cost price of Rs.6,600/- (Rupees Six thousand six hundred only) and to pay a compensation of Rs.10,000/- (Rupees Ten thousand only) for mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 22^nd day of January 2020. 

 

MEMBER                                                                           PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	08.02.2010	Copy of Invoice given by the third opposite party for the purchase of Sony Ericsson Mobile
Ex.A2	10.05.2010	Copy of work order of the 2nd opposite party for repair of Sony Ericsson Mobile
Ex.A3	18.06.2010	Copy of work order of the 2nd opposite party for the repair of Sony Ericsson Mobile
Ex.A4	27.07.2010	Copy of work order of the 2nd opposite party for the  repair of Sony Ericsson Mobile
Ex.A5	16.07.2010	Copy of Letter of the complainant to the President, the Tamil Nadu Consumer Protection Organisation
Ex.A6	16.07.2010	Copy of Notice of the complainant sent through RPAD by the President, the Tamil Nadu Consumer Protection Organisation addressed to the Sony Ericssion (India), Accel – Chennai GR, Chennai
Ex.A7	20.07.2010	Copy of Acknowledgement for the receipt of notice:16.07.2010 from the Sony Ericssion (India), Accel – Chennai GR, Chennai
Ex.A8	01.09.2010	Copy of final notice of the complainant sent through RPAD by the President, the Tamil Nadu Consumer Protection Organisation addressed to the Sony Ericssion (India), Accel – Chennai GR, Chennai

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:  EVIDENCE CLOSED

2^ND  OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

 

MEMBER                                                                                                                                                                                       PRESIDENT