| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO. CC/191/2016 Date of Institution:-03.05.2016 Order reserved on:24.03.2023 Date of Decision:-19.04.2023 IN THE MATTER OF: - Kaushal Pachauri @ Kaushu
S/o Sh. Pratap Singh R/o House No. 79, RPS Flats, Dr Ambedkar Nagar, New Delhi- 110062......Complainant VERSUS - Sony India Pvt. Ltd.
A-31, Mohan Cooperative Industrial Estate, Mathura Road, Okhla New Delhi – 110044OP-1 - M/s Technocare Solutions Pvt. Ltd.
E-13, Ground Floor, Central Market, Lajpat Nagar, New Delhi – 110024OP-2 - M/s Dass Refrigeration
H-11, Kalkaji Main Road, New Delhi – 110019OP-3 O R D E R Per Dr. Harshali Kaur, Member - The Complainant purchased 2 mobile handsets from OP-3 manufactured by OP-1 on 08.11.2015. He paid a sum of Rs.21,000/-for Sony Xperia C4 E5363 (H1) and R.17,500/- for Sony Xperia M4: E2363 (H2) to OP-3 for the said mobile handsets. OP-3 issued separate receipts for the purchased mobile phones, which the Complainant has annexed with his complaint as Annexure-1 and Annexure-2, respectively.
- The Complainant states that both the mobiles came with a warranty of one year from the date of purchase,i.e. 08.11.2015 to 07.11.2016 and as per the manufacturer policy,the phone would be replaced with a new handset if they create any problem within 10 days from the date of purchase.
- The Complainant alleges that (H1) became defective after a few days of purchase,and hence he submitted the phone to OP-2 on 25.11.2015 when he noted that he could not make and receive calls, drop-in network calls or no network and hanging and battery problem etc. His phone was repaired, and a job sheet was issued to him towards the repair (Annexure-3).
- (H2), which the Complainant purchased to gift his wife, also became defective. When the Complainant opened the sealed packaging on 19.11.2015 and inserted the SIM Card, he realised that the phone was not functioning. He deposited (H2) with OP-2 on 20.11.2015, who found the ‘Mic not working, no call log and no network’ defect as mentioned in the service job sheet dated 20.11.2015 (Annexure-4). OP-2 gave the Complainant a standby phone which also became dysfunctional after a few days. The Complainant requested OP-3 to replace his phones as he had purchased them from OP-3, but OP-3 took no action to resolve the Complainant’sissue.
- The Complainant approached the Mediation and Conciliation Centre and lodged a complaint for early redressal of his grievance, but no settlement could be arrived upon through Mediation with the O.P. The Complainant has annexed the copies of the Mediation Centre report (Annexure-5 & 6). Despite consistent efforts, when the Complainant could not replace his defective phones, which are still lying with OP-2, he filed the present complaint alleging deficiency-in-service qua the O.P.’s under section 12 of Consumer Protection Act, 1986. He has prayed for a refund of the cost of his phones,i.e.Rs.21,000/- and Rs.17,500/- with interest. Rs.40,000/- towards compensation for mental agony, torture and pain and Rs.20,000/- as litigation charges.
- Notice was issued to the O.P.s who appeared and filed their reply.In their reply, the O.P.s admitted that the Complainant purchased two phones. The Complainant deposited (H1) with OP-2 on 20.11.2015, raising an issue with ‘Microphone’. After inspection,OP-2 immediately replaced several parts like- the vibrator+sub antenna+thermal film free of cost even though only minor repair action was needed in the Complainant’s H1 phone, which was deposited with scratches on the camera lens. The Complainant was informed about the replacement, but he did not come to collect the phone from OP-2.
- Thereafter, the Complainant approached OP-2 with (H2) on 25.11.2015, raising the issue of “Call Drop”, for which only software was required to be updated. After inspection, it was found to be in normal working condition as per its given specification. The handset was delivered back to the Complainant in working condition.
- On receipt of the notice, OP-2 again inspected the (H2) handset on 28.07.2016 and found ‘No Trouble’ with the mobile, which was working normally. The Complainant was informed of the same,and it was requested that he collect the phone from OP-2. The Complainant refused to collect the handsets from OP-2. The O.P.s have also cited a catena of judgements to substantiate their averments as given in their reply. They have also annexed the copy of the Important Information of OP-1 manufacturer, which contains the warranty clause on page no. 23 of their reply.
- Thereafter, the Complainant filed his rejoinder referring to the judgement passed by the Hon’ble Supreme Court in Bharathi Knitting Co. vs Worldwide Express Courier Division of Airfreight, AIR 1996 SC 2508
“ifduring the warranty period this product fails to operate under normal use and service due to defects in material or workmanship, the authorised distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein.” - He also filed his own affidavit to be read as evidence reiterating what had already been stated in his complaint. This Forum gave several opportunities to the O.P.s to file their affidavit in evidence. Subsequently, the O.P.s were proceeded ex-parte vide order dated 08.09.2017 when they did not appear since 19.08.2016 before the Forum. The Complainant did not file any written arguments, and hence the present complaint was fixed for final arguments.
- We have carefully heard the Complainant,who has appeared in person and have perused the documents he has exhibited on record to corroborate his claim. We find that the Complainant purchased two mobile phones on 08.11.2015 from OP-3, manufactured by OP-1,paying a total cost of Rs.38,500/- to OP-3. Both the handsets he purchased became defective on 20.11.2015 (H2) and 25.11.15 (H1), which is admitted by O.P.s in their reply, who state that they received the Complainant’s mobile phones and duly issued job sheets to the Complainant after rectifying his phones. It was the Complainant who refused to collect his repaired phones from OP-2.
- A bare perusal of the warranty clause annexed with the reply of the O.P. itself states as below:
Our warranty 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 its original purchase by a consumer. This limited warranty will last for a period of one (1) year as from the original date of purchase of the product. What we will do If, during the warranty period, this product fails to operate under normal use and service, due to defects in design, materials or workmanship, Sony authorised distributors or service partners, in the country/region* where you purchased the Product, will, at their option, either repair, replace or refund the purchase price of the product in accordance with the terms and conditions stipulated herein. - Hence, the Complainant, who had purchased the new mobile phones on 08.11.2015, would indeed have lost faith in the products, which became defective on 20.11.2015 and 25.11.2015, i.e. 12 days and 17 days after purchase. The O.P. admitted to replacing “the vibrator + subantenna and thermal film” of the Complainant’s phone Model No. E2363 (H2) despite finding the defect only in the “Microphone”. This act of the O.P.sdoes not instil confidence in us that the Mobile Handset required only minor repair action when it was deposited on 20.11.2015.
- The O.P. has admitted to updating software for the second handset, Model No.E5363. The phone was deposited with OP-2, and the Authorised Service Centre comments in the job sheet annexed by the Complainant with his complaint (Annexure-3) reflect – Network dropping in calling, sometimes no network. In our view, the Complainant has failed to prove the defect with the handset in this case, as call drop and network issues are related to the service provider.
- Thus, it is clear that Model No. 2363 (H2) phones had some defects, which OP-2, the authorised service centre of OP-1, the manufacturer, could not repair to the satisfaction of the Complainant. This, in our view, is tantamount to deficiency-in-service on the part of the O.P.s. The Complainant has not whispered even a word in his complaint about checking his phone Model No. 5363, to see if it was functional after the software was updated. Hence, we feel that the Complainant could not place on record any cogent evidence to show that Model No. 5363 was defective and was not repaired by OP-2 to his satisfaction.
- In light of the discussion above, we allow the complaint to the extent thatthe O.P.s are directed to jointly and severally pay the Complainant a sum of Rs.17,500/- towards refund of the mobile phone Model No. 2363 along with Rs.20,000/- towards compensation for the mental agony and harassment the Complainant had to endure and Rs.5,000/- towards litigation cost. OP-2 shall also return the repaired phone Model No. 5363, to the Complainant.
- Order be given dasti to both parties.
- The file be consigned to the record room thereafter.
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