Punjab

Fatehgarh Sahib

CC/134/2014

Aman Sharma - Complainant(s)

Versus

Sony India Pvt Ltd - Opp.Party(s)

Sh.Aman Sood

12 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                             Consumer Complaint No.134 of 2014

                                                                                                              Date of institution:  07/10/2014                                                                                                                                                                     Date of decision   :  12.08.2015

Aman Sharma aged about 38 years son of Sh. Prem Chand R/o H.No.290, Sector 4-C, Shastri Nagar, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib.

……..Complainant

Versus

1. Sony India Pvt. Ltd. having its registered office A-31, Mohan Co-operative Industrial Area Mathura Road, New Delhi.
2. Digital Care, SCF 11, GF, GBT Market, Khanna-141 401( Authorized Service Center) through its authorize person.
3. Punjab Mobile Hut, opposite Ladies Park, Gole Market, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib through its authorized person.

…..Opposite parties     

Complaint Under Sections  12 and 13 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                              

          Smt. Veena Chahal, Member       

   Sh. Amar Bhushan Aggarwal, Member     

Present :            Sh. Aman Sood, Adv.Cl. for the complainant.                                                                                                                                  Sh. Sanjeev Abrol, Adv.Cl. for OPs No.1 &2.    

                          Opposite party No.3 exparte.

 

 

ORDER

By Sh. Ajit Pal Singh Rajput, President.

                   Complainant, Aman Sharma aged about 38 years son of Sh. Prem Chand R/o H.No.290, Sector 4-C, Shastri Nagar, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 & 13 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                The complainant purchased a mobile of Sony company on 16.11.2013 amounting to Rs.41,000/- from opposite party No.3, who gave one year warranty for all types of defect in the mobile hand set and also issued invoice No.1665 dated 16.11.2013 in the name of complainant. It was also assured by opposite party No.3 that the mobile hand set in question is water proof. On 28.09.2014, the mobile in question become dead and after that on 29.09.2014 the same was sent to opposite party No.2, who is authorized service center of opposite party No.1.  On the said date after checking the mobile OP No.2 refused to repair the mobile as mobile warranty is void due to liquid Intrusion Indicator Red and they told that the mobile in question is not repairable as it is totally damaged.  Thereafter, the complainant again visited OP No.2 but they refused to repair the mobile in question and insulted the complainant by using filthy language.  Thereafter, the complainant also visited OP No.3 and requested them to replace the said mobile with new one but they totally refused to do so and also refused to repair the same. The act and conduct of the opposite parties amount to  deficiency in service and unfair trade practice. Hence, this complaint for giving directions to the opposite parties to refund Rs.41,000/- i.e price of mobile in question and to  pay Rs.10,000/- as compensation for unnecessary harassment and mental pain and Rs. 5,000/- as cost of litigation.

3.                Notice of the complaint was issued to the opposite parties, but opposite party No.3, who appeared through Sh.R.S.Cheema, Advocate who filed his memorandum of appearance, failed to file power of attorney and written version despite several opportunities. Hence, OP No.3 was proceeded against exparte.

3.                The complaint is contested by Opposite party No.1 & 2, who filed joint written reply. In reply to the complaint they stated that OP No.1 provides a 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 OPs No.1 and 2 further stated that it provided “User Guide” along with the handset, which mentions the precautions one should take while using the phone, and if a person does not comply with the same then they are not liable for any damage/defect in the product. Further this handset has been certified by international bodies for certain standards relating to water and dust resistance and these standards are acceptable worldwide. On basis of these certification OP No.1 is making the claim regarding ‘water and dust resistance’ only.  OP No.1 and 2 further stated that the complainant after enjoying the subject mobile admittedly without any sort of defect for the period of almost 11 ½ months approached the authorized service centre of OP No.1 for the very first time on 26.09.2014 raising the issue of “ Display Contrast” however,  on being inspected the subject mobile handset was found to be damaged due to the liquid ingression which was duly demonstrated to the complainant by showing the liquid indicators, which were turned into red color. Therefore, the handset could not be covered under warranty as the same was damaged due to its negligent use by the complainant, which is beyond the control of the answering OPs. After denying the other averments made in the complaint, they prayed for dismissal of the complaint.

4.                In order to prove the case, the complainant tendered his affidavit Ex. C-1,  original copy of service job sheet Ex. C-2, attested copy of booklet Ex.C-3 & Ex. C-4, original bill dated 16.11.2013 Ex. C-5 and closed the evidence. In rebuttal OPs No.1 and 2 tendered affidavit of Priyank Chauhan Ex. OP-1, copy of letter dated 02.12.2014  Ex. OP-2, copy of resolution Ex. OP-3, copy of  important information Ex. OP-4  & OP-5, copy of photograph Ex. OP-6, copy of service job sheet Ex. OP-7 and closed the evidence.

5.                The ld. counsel for the complainant has submitted that the main controversy involved in the present case is whether the said mobile set is water proof as per the advertisement and information provided on the brochure by the OP no.1 & 2. He stated that as per the booklet i.e Ex.C-3 & Ex. C-4, “The IPX5 certification is granted if the equipment still functions as a telephone after the test. In the IPX7 certification test, the equipment is placed in a 1- meter deep tank of tap water and left for 30 minutes. The certification is granted if the equipment still functions as a telephone after the test. The IPX8 is provided when the equipment is immersed beyond 1m. The exact conditions is specified for each individual equipment”.  The ld. counsel argued that OP No.2 has issued a misleading booklet stating and showing pictures of the said handset dipped in the water and now OPs No.1 & 2 has refused to repair and replace the same stating that it got damaged due to water. The ld. counsel further pleaded that he had filed an application for production of the said handset and this Forum vide order dated 15.05.2015 had directed the OPs to produce the said handset before this Forum but the OPs failed to produce the same, thus adverse inference be drawn. The ld. counsel further submitted that from the act and conduct of OPs No.1 & 2 and the booklet i.e Ex.C-3 & Ex. C-4, it is very well proved that the OPs had indulged in unfair trade practice and committed deficiency of service by not repairing or refunding the amount of Rs.41,000/-.

6.                On the other hand, the ld. counsel for OPs No.1 & 2 has stated that the OPs had never indulged in any kind of unfair trade practice. He submitted that complainant had approached the OPs with the issue of          “Display Contrast” however, the same was inspected and it was found to be damaged due to the liquid ingression which was duly demonstrated to the complainant and the same reason is also mentioned in the job sheet i.e Ex. OP-7 .The ld. counsel pleaded that the OPs acted as per the terms and conditions of warranty thus they cannot be held liable for deficiency of service and unfair trade practice.

7.                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, we find that there is force in the plea of the Ld. Counsel for the complainant. It is evident from the service job sheet i.e Ex-C2 that the complainant had handed over the said mobile set to OP No.2 within the warranty period but OP No.1 has observed that the warranty got void due to liquid intrusion indicated: Red.Ex-C3 & Ex-C4 is the booklet issued by the OP No.2 wherein it has been mentioned “Water and dust proof. The Xperia TM Z2 smartphone combine IPX5/7/8 water proof and IP5X just resistance for tough, reliable performance. Now you can use Xperia TM Smartphone in even more places; the kitchen, the bath and outdoors and also in your pool(under water). Take a closer look at it’s toughness. IPX5 and IPX7 are waterproofing standards established by the IEC( International Electrotechnical Commission).  IPX5 means the design can remain dry inside under water jets from any direction. The tested equipment is subjected to water jets for at least three minutes, using nozzles with internal diameters of 6.3 mm located about 3 meters from the device, with a flow rate of 12.5 liters/minute. The IPX5 certification is granted if the equipment still functions as a telephone after the test. In the IPX7 certification test, the equipment is placed in a 1- meter deep tank of tap water and left for 30 minutes. The certification is granted if the equipment still functions as a telephone after the test. The IPX8 is provided when the equipment is immersed beyond 1m. The exact conditions is specified for each individual equipment.

          IP5X is a standard defining resistance to particles. In this test, the equipment is placed in a chamber full of dust, with particles non larger than 75 micrometers, for eight hours, during which time the dust is agitated. Certification is granted if it functions normally as a telephone after the test, and is demonstrated to be electrically safe”.  We are of the opinion that it is well established that OP No.1 has claimed that the said mobile set is water proof and dust resistant. The OPs have no where mentioned in the booklet i.e Ex-C3 & Ex-C4 that in case liquid intrusion is indicated the warranty will become void and the said mobile cannot be repaired. In our opinion the OPs through their brochure/booklet have mislead the complainant by stating that the said mobile handset is water proof as stated in Ex-C3 & Ex-C4. Moreover, the OPs have also failed to produce the said handset before this Forum, thereby inviting adverse inference. We are of the considerate view that, it was the responsibility of OPs No.1 & 2 to repair or replace the Mobile Set since it was under warranty. OP No.3 is only the retailer, hence, he has nothing to do with the defect in the said mobile set. The OPs have cited few case law in their reply but have failed to produce the same, therefore the said case laws cannot be considered by this Forum. Hence we find that OPs No.1 & 2 has committed deficiency of service and has not been able to properly redress the grievance of the complainant. Accordingly, we direct the OPs No.1 & 2 to refund the amount of Rs.41,000/- as mentioned in invoice No.1665 dated 16.11.2013. Complainant is also held entitled to the damages suffered by him on account of harassment and mental tension. The damages are assessed at Rs.3000/- and litigation cost of Rs.5000/-. The OPs are directed to comply with the order of this Forum within a period of 45 days from the date of receipt of this order, in case the OPs fails to comply with this order the OPs shall also be held liable to pay 9 % interest till its realization. The present complaint is allowed.

8.                The arguments on the complaint were heard on 11.08.2015 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:12.08.2015

(A.P.S.Rajput)                         President

 

(Veena Chahal)                        Member

 

(A.B. Aggarwal)                      Member