Order dictated by:

Sh.S.S. Panesar, President.

1        Arun Om Parkash has brought the instant complaint  u/s 11, 12  & 13 of the Consumer Protection Act, 1986 on the allegations that complainant has purchased one mobile make Sony Xperia Z3 item No. 43010948 bearing IMEI No. 355098060362501  for Rs. 45000/- vide bill dated 20.1.2015 from opposite party No.3. Opposite party No.1 being authorized dealer of Sony company told the complainant that the said mobile set is water proof and having one year warranty regarding the same and would not have any problem even if it is dropped in the water upto 1 ½ meters.  After few days the said mobile phone fell in water, it kept on working but some of its external parts started to disintergrate automatically. The complainant approached the service centre i.e. opposite party No.2 on 23.9.2015. It was in working condition and the same was also mentioned in the job sheet issued by opposite party No.2 and the manager told the complainant to come after  one week. But when complainant visited service centre to collect the same on 29.9.2015 , the manager of opposite party No.2 handed over the estimate of repair  the said phone to the complainant to the tune of Rs. 25,469/- and told the complainant that phone was not working any more and the complainant had to bear the cost of its repair. The complainant asked that the mobile was in warranty period  but the manager of opposite party No.2 did not listen to the request of the complainant  and kept on being adamant on his stand  and refused to repair the mobile as per warranty. It is very clear in the browsher of the phone  which come with the kit of the phone that the phone is dust tight and is protected against low pressure, water stream as well as against the effect of submersion for 30 minutes in fresh water upto 1.5 meter deep. The covers of the phone was firmly attached, when it was used by the complainant. The complainant requested opposite party No.2 for repair the same as the phone is in full warranty period but he refused to accept the genuine request of the complainant.  The complainant also served a legal notice upon the opposite parties but of no avail. The complainant has sought for the following reliefs vide instant complaint :-

(a)     Opposite parties be directed to remove the defects of the mobile  phone or to replace the mobile with other one of same model or to refund the amount of the cost price of the mobile ;

(b)     Opposite parties be also directed to pay compensation to the tune of Rs. 25000/- ;

( c )    Opposite parties be also directed to pay a sum of Rs. 11000/- as litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 to 4 appeared and filed a collective written version  taking certain preliminary objections therein inter alia that as per record of the company complainant had purchased a Sony Xperia Z3 bearing model No.; D6653 with IMEI No. 355098060362501 for Rs. 45000/- on 20.1.2015 after a detailed demonstration of the features, functions, applications by opposite party No.3 and after satisfying himself with the condition of the mobile phone. The copy of retail invoice is annexed ; that opposite party No.4 provides a limited warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with 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. The relevant terms of warranty provided by opposite party No.4 is as follows:-

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

Further clause 3 of the terms of warranty provided  by the opposite party is as follows:-

“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, modificagtion or adjustment acts of God or damage resulting from liquid.

3.       The opposite party No.4 has also provided user guide alongwith the handset which mentions the precautions one should take while using the phone and if a person does not comply with the same, then opposite party No.4 is not liable for any damage/defect  in the product. Further 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 these certifications the opposite party No.1 is making the claim regarding water and dust resistance only which is not maintainable as company does not provide any warranty against the defect caused due to dust and water. Therefore in view of the above warranty terms , it is clear that opposite parties are not liable to repair or replace the handset as the handset lies outside the scope of warranty. The defect  in the handset has arisen due to ingress of liquid, use of local adhesives as the handset was opened in local.  The complainant after enjoying the mobile admittedly without any defect for the period of more than 8 months approached opposite party No.2 for the very first time on 23.9.2015 raising an issue of defective from cover  etc. Upon inspection it was found that the handset was locally tampered, display pop ups, liquid logged moreover, upon its thorough inspection the “PCB”, “display” and the back cover were also found to be badly damaged which was duly demonstrated to the complainant by showing its white liquid indicator. It was submitted that since the handset was found damaged on account of liquid ingression, which is not covered under warranty, therefore, estimate cost of Rs. 28,250.32 paise was sharted with the complainant towards necessary repair charges, which the complainant refused to pay. Not only this complainant  did not even collect the handset from the service centre.  Remaining allegations have specifically been denied and a prayer for dismissal of complaint was made.

4.       In his bid to prove the case complainant made into the witness box and tendered his duly sworn affidavits Ex.CW1/A and CW1/B alongiwth documents Ex.C-1 to Ex.C-7 and closed the evidence.

5.       To rebut the aforesaid evidence Sh.Saurabh Sharma,Adv.counsel for opposite parties No.1 to 4 tendered into evidence affidavit  of Meena Bose , authorized signatory Ex.OP1,2,3,4/1 alongwith documents Ex.OP1,2,3,4/2 to Ex.OP1,2,3,4/8 and closed the evidence on behalf of opposite parties No.1 to 4.

6.       We have heard  the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.

7.       On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that it is proved on record that the complainant purchased one mobile Sony Xperia Z3 item No. 43010948 bearing IMEI No. 355098060362501, model NO. 6653 black in colour of Sony company for Rs. 45000/- vide bill dated 20.1.2015 from opposite party No.3 . At the time of purchase of the said mobile phone, opposite party No.1, which is authorized dealer of Sony company intimated the complainant that mobile hand set  is water proof and is having one year manufacturing warranty regarding the same. The mobile handset  will not have any problem even if it is dropped in water upto 1 ½ meters. After few days of the purchase the said mobile phone suddenly fell in water, it kept  on working but some of its external parts started to disintegrate automatically. The complainant approached the service centre of Sony company i.e. opposite party No.2 and he handed over  the mobile handset to opposite party No.2 on 23.9.2015. It was in working condition and the same was also mentioned in the job sheet issued by opposite party No.2, service centre, copy whereof is Ex.C-5. . The manager of the service centre asked the complainant  to collect the mobile handset after one week. But when complainant visited service centre to collect the same on 29.9.2015, to the utter surprise of the complainant , the manager of opposite party No.2 handed over  the estimate of repair of the said phone to the complainant to the tune of Rs. 25,469/-, copy whereof is Ex.C-6 on record. The complainant, however, insisted that since the mobile handset was within warranty period, therefore, he was not obliged to pay the amount of Rs. 25469/- as repair charges, but opposite party No.2 did not listen to the request of the complainant and kept on being adamant on his stand without any justification and refused to repair the mobile as per warranty.  The broucher of the mobile Ex.C-4 on record clearly states that the phone is dust tight and is protected against low pressure, water stream as well as against the effect of submersion for 30 minutes in fresh water upto 1.5 meter deep. At the time of its use, the cover of the phone was firmly attached .The complainant requested opposite party No.2 for repairing the same as the phone was within the warranty period , but it refused to oblige. The complainant also requested the opposite party to remove the defects of the mobile  phone or to replace the mobile phone with the new mobile set of the same make/model  or to refund the price of the same alongwith compensation for deficiency in services besides litigation expenses, but they have refused to accept the claim of the complainant. It is requested that complaint of the complainant may be allowed accordingly.

8.       But, however,  from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant used the mobile handset in dispute for 8 months continuously from the date of its purchase without any sort of defect or complaint. It is an admitted fact that complainant approached opposite party No.2 for the first time on 23.9.2015 raising an issue of “defective front cover etc.”. The opposite parties upon inspection found that handset was locally tampered , display pop ups, liquid logged . Moreover, upon its thorough inspection the PCB, display and the back cover were also found  to be badly damaged which were duly demonstrated to the complainant by showing its white liquid indicator. Copy of  job sheet dated 23.9.2015  Ex.OP1 to 4/6 bears witness to the said fact. As such there was no manufacturing defect in the handset  due to the fact that the handset in question was being used satisfactorily by the complainant for first 8 months . Had there been  any manufacturing  defect in the handset, the complainant would have surely contacted opposite parties right in the very beginning. It is relevant to mention that apart from the fact that the handset was damaged due to liquid ingression besides that the handset in question was locally repaired.  There was an attempted  service  by the complainant  from some un-authorized agency. It is clearly mentioned in the warranty terms that the warranty stands void in case where there is a tampering of the product. The relevant extracts of the warranty terms are as follows:-

“7 Tampering with any of the seals on the product will void the warranty”

Clause 7 clearly says that any tampering with any of the seals on the product will void the warranty.  In the present case also there was an attempted service by the complainant from some unauthorized agency. The said fact was also communicated to the complainant by opposite party No.4 vide letter dated 21.12.2015, copy whereof is Ex.OP1to 4/8. Moreover there were liquid mark present on the PCB of the handset. The symptom pictures of water ingression and tampered condition of the handset & account for Ex.OP1to4/7 on record. The present complaint is liable to be dismissed mainly on two counts. Firstly, the handset in question was tempered from some unauthorized agency or it was repaired from some local market/unauthorized agency which automatically made the warranty void as per clause (7) of the warranty terms. Secondly the handset in question was brought in a damaged condition due to which liquid entered the handset damaging the set altogether. Due to the damaged condition also the warranty stood void. It is settled proposition of law that complainant cannot take advantage of his own negligence and carelessness. Moreover the complainant has not thoroughly gone through the instructions while using the water proof handset. Thus taking the case from any angle, it becomes evident that it was the complainant , who is negligent in using the  mobile handset in dispute. The mobile handset was damaged which made the warranty condition to be void. Even the water entered the mobile handset on account of the fact that the mobile handset was damaged due to improper use of the same. As such the complainant is not entitled to any relief prayed for. Opposite parties are not guilty of any deficiency in service. As such the instant complaint fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 08.09.2016

/R/