BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    04^th DAY OF FEBRUARY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to get the mobile of the complainant repair or replace the new mobile in place of defective mobile, to pay a sum of Rs.50,000/- with interest @ 18%, to pay Rs.20,000/- for loss of mental agony, pain and suffering and loss of valuable customers/clients and grant such other reliefs.

2. The brief allegations made in the complaint are as under:

On 03.01.2015 the complainant has purchased a sony mobile D6653 Xperia Z3- Black, bearing No.355098060401804 for a sum of Rs.49,990/- from OP-2, which is one of the branch of OP-3 and the later is the authorized dealer of OP-1 vide invoice No.MMSP-1123 through the loan facility availed by OP-2 in favour of complainant through Bajaj Finance and the complainant has given his cheque as a security to the said finance while availing the loan and paying the regular monthly installment to the said finance.  After the purchase of the said mobile used to get various problems, as such he could not able to make use of the same as desired by him, as such complainant has lost his valuable customers and clients.  That the complainant has given the aforesaid mobile to OP-4 for service, wherein the employees of OP-4 after looking into the mobile of the complainant has given the total estimate of Rs.10,408-92 to get the mobile of the complainant in a good condition.  The complainant immediately told the employees of OP-4 that his mobile is having a validity period and also having an insurance cover but the said employee told the complainant that the items sought to be repaired or replaced is not covered with the validity period and also does not cover the insurance policy.

That on 06.05.2015 the complainant with great difficulty has paid the aforesaid sum of Rs.10,408-92 and got his mobile repaired from OP-4, even after getting the aforesaid mobile of the complainant repaired, he could not able to make use of the same once again problems crept in and aroused in the mobile of the complainant.  On 21.05.2015 the complainant once again has taken the aforesaid mobile to the service of OP-4, at that point of time the officials of OP-4 has taken the mobile of the complainant and told the complainant to come on the next day.  The complainant went to the office of OP-4 by that time the OP-4 has given an estimate dated 22.05.2015 in a sum of Rs.29,990-78 in favour of complainant to get his mobile repaired once again.  That the complainant was shocked and surprised to see the estimate of OP-4 as he did not have the knowledge of the items sought to be repaired or replaced, as it is of a huge sum, even though he has hardly used the said mobile, even the financial facility availed by the complainant from the OP-2 is deducting the monthly installment of the complainant even though the mobile of the complainant is constantly under repair that too without no fault of the complainant.  Even the said Bajaj Finance is holding the cheque of the complainant as of security and the complainant is having an apprehension that the said bajaj finance is colluding with OP-2 is making use of the said cheque of the complainant towards their selfish ends, as the complainant issued a notice to OP-2 in turn advised the said Bajaj Finance not to make use of the cheque of the complainant towards any debt or of liability of the complainant.  That the complainant requested the officials of OP-4 to get his mobile repaired but OP-4 failed to repair the mobile and complainant paid the estimated amount to OP-4.  Thereafter complainant made various requests to OPs through phone but OPs neglected and failed to consider the request of the complainant and they have not taken any step to get repair the mobile of the complainant even though the said mobile covered under the warranty period from the date of purchase.  As such OPs are liable to get the mobile replaced or for the replacement of the new mobile phone or to get the said mobile of the complainant repair and also liable for damages, loss of precious time, mental agony and loss of customers and clients.  Complainant got issued a legal notice to OPs on 30.06.2015.  Notice issued to OP-1 returned unserved as they vacated the premises and the notice issued to OP-2 to OP-4 have been duly served.  OPs neither replied to the notice nor repair the mobile of the complainant or issued to the new mobile.  Complainant felt deficiency in service on the part of OPs.  Hence this complaint.

3. After issuance of notice, only OP-1 and OP-4 did appeared.  Inspite of notice duly served on OP-2 & OP-3, did not appear.  Hence OP-2 & OP-3 are placed ex-parte.  It is noticed that, the version has been filed on behalf of OPs.1 to 4 in the common.  The order of placing OPs.2 & 3 as ex-parte is not set aside hence version filed on behalf of OPs.1 to 4 is only confined.  OP-1 is the manufacturer.  OP-4 is the service centre.  OP-1 is the branch of OP-2 in respect of selling of the said mobile handset.  The sum and substance of the version filed by the OPs is that:

That the present frivolous complaint filed by the complainant is an apt illustration of flagrant abuse of the benevolent provisions of the Consumer Protection Act, 1986 and the complaint under reply merits no indulgence from this Forum.  That the complainant has purchased Sony XPERIA Z3 D6653 phone, having IMEI No.355098060401804 on 03.01.2015.  However the complainant approached the OPs on 06.04.2015 with an issue of no display in the said handset and on inspection by the OPs, it was found alleged defect in the said handset.  Thereafter the OPs out of goodwill gesture replaced the Display of the set free of cost to the complainant’s full satisfaction vide job sheet No.W115040600879.  Again the complainant approached the service centre on 22.05.2015 with an issue of No display in the said handset.  However, on examination by the Service Engineer of OPs, it was found that the alleged defects in the mobile phone was due to complainant’s own misuse or mishandling and there were clear sign of external damage due to Liquid logged and for which only the complainant was liable.  It was communicated to the complainant that evidently this is a case of physical damage caused due to Liquid logged and hence warranty is rendered void and the OPs are willing to repair the set but the same would be done on payment of charges.  Thereafter, it is pertinent to mention that, as per the customer oriented policy the OPs offered free of cost service to the complainant.  But the complainant rejected the offer of the OPs and was adamant for the exchange of the said product.  That the OPs always keep its customers at the very high pedestal and the complainant was offered best services.  It was communicated to the complainant that the present case is a case of physical damage and therefore free of cost repair would not be possible under warranty terms but the OPs are more than willing to repair the set on payment of charges, still the complainant filed the present complaint.  That it is also pertinent to point out here the judgment passed by the Hon’ble Supreme Court of India in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 SC 2508 wherein the Hon’ble Supreme Court upheld the decision of the Hon’ble National Consumer Disputes Redressal Commission holding that the terms of warranty were binding on the parties and that the liability undertaken in contract between parties should be limited to extent undertaken and the warranty terms in the present case clearly mention that in the case of external damage to the handset, the warranty terms would be rendered void.  On this ground and other grounds prays for dismissal of the complaint.

   4. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  Authorized signatory of OPs one Ms.Meena Bose, Executive Customer Care of Sony India Pvt. Ltd., submitted the affidavit evidence.  Both parties have produced certain documents and have submitted their written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OPs.  Though the notice was duly served on OPs.2 & 3 but not appeared hence placed ex-parte.  The common version has been filed on behalf of OPs.1 to 4 which is confined only OP-1 & OP-4.  OP-1 is the manufacturer.  OP-4 is the service centre.  If OPs.2 & 3 did not appeared in pursuance of notice duly served it amounts to an admission in respect of the contention taken by the complainant in view of the judgment reported in 2018(1) CPR 314 (NC) in the case of M/s.Singla Builders & Promoters Ltd., V/s. Aman Kumar Garg.

8. Any how we placed reliance on the available materials on record.  It is not in dispute that, the said mobile has been purchased by the complainant on 03.01.2015 for an amount of Rs.49,990/- from OP-2 which is one of the branch of OP-3.  After purchasing the said mobile used to get various problems as such complainant not able to make use of the same.  Hence he has given the said mobile handset to the OP-4 which is the service centre.  After looking into mobile of the complainant has given the total estimate of Rs.10,408-92 to get the mobile of the complainant in good condition.  Immediately complainant told the employees of OP-4 that the complainant mobile is having validity period and also having insurance cover but the said employee told the complainant that the items sought to be repaired/replaced is not covered with the validity period and also does not cover the insurance policy.  Anyhow with great difficulty complainant has paid aforesaid amount of Rs.10,408-92 and get his mobile repaired from OP-4.  Again the said problem persists.  Hence complainant has no other go except to handover the said mobile handset on 21.05.2015 after repair.  In this context OP-4 has given an estimate of Rs.29,990-78 in favour of the complainant to get his mobile repaired once again.  As the complainant thought that though the said mobile set is in the warranty period, the charging of the repair estimate for an amount Rs.29,990-78 is unfair trade practice.  The reasons assigned by the OPs was, misuse or mishandling and there were clear sign of external damage due to Liquid logged and for which only the complainant was liable.  If there is a liquid log the same is to be incorporated in the terms and conditions but none of the documents being produced by the OPs.1 & 4 to show that the said mobile is having problem of Liquid log and external damage.  This defence appears to be taken only after thought.  Further there is no any pleadings of the OPs.1 and 4 that the complainant has kept the said mobile handset open to the sky to absorb the rain water if any.

9. In this context we come to the conclusion that, when the said mobile handset is under the warranty period the defect found therein are to be rectify with free of cost but not to replace the said mobile handset as per the decisions reported in I (2006) CPJ 92 (NC) in the case of Shivprasad Paper Industries V/s. Senior Machinery Company, wherein at para-5 it is held that, it is by now settled law that an equipment or machinery cannot be ordered to be replaced if can be repaired.  Further this Forum also come across the decision reported in I (2018) CPJ 6A (CN) (HP) in the case of Sushil Kumar V/s Nokia Care Centre relying the decision of the National Commission wherein it is held as under:

Consumer Protection Act, 1986-Sections 2 (1)(f), 2 (1)(g), 15-Goods-Purchase of mobile phone-Defective-Non-functioning of mobile-Warranty period-Sent to service centre-Non-rectification of defect-Deficiency in service alleged-Replacement or refund sought-District Forum partly allowed complaint and directed free of cost repairing-Hence appeal-Opposite Party did not give any guarantee of mobile set but has given warranty of mobile- As such Opposite Party is under legal obligation to repair mobile set free of cost during warranty period-Job carried out in handset was satisfactory and he signed at delivery of hand set-Certificate given by him is binding upon him-He cannot be allowed to approbate or reprobate at same time-District Forum passed order with cogent and positive reason-Impugned Order upheld.

10. In the light of the decision cited supra, this Forum has no other go except to direct OP-1 & OP-4 to get repair the said mobile free of cost.  OP-1 is the manufacturer.  OPs.2 & 3 being seller to co-operate OP-1 in repairing the said mobile in a usable condition by extending one year warranty period from the date of repair, failing which the complainant is at liberty to take action as per law.  We are of the opinion that the complainant is not entitled for any of the compensation.  But anyhow, he is entitled for an amount of Rs.1,000/- being the cost of litigation.  Accordingly, this point is answered in the affirmative.

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is allowed in part.

OP-1 and OP-4 are directed to repair the mobile handset bearing IMEI No.355098060401804 with free of cost by extending one year additional warranty from the date of repair.  The complainant is not entitled for any compensation.  But anyhow, he is entitled for cost of litigation of Rs.1,000/-.

OP-2 & OP-3 being the sellers.  They are also duty bound to instruct the service centre to carry out the necessary repairs.

Further OPs are directed to comply the said order within four weeks from the date of communication of the order.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 04^th day of February 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 14.03.2016.

Sri.Shivakumar.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 27.07.2016.

Ms.Meena Bose.

Document produced by the Opposite party/s.

MEMBER                                                               PRESIDENT

Vln*