JUDGMENT

             PER : Hon. Member, Ms. PREETHI CHAMIKUTTY

1. The present complaint is filed under Section 11, 13 and 14 of Consumer Protection Act 1986 by Complainant praying to hold Opposite Party (O.P.) guilty of deficiency of service and unfair trade practice, praying for refund of amount claimed, alongwith interest, compensation and costs of legal proceedings.

2. Brief facts of the complaint is as under :

a)  Complainant states he purchased Sony Xperia Z3 + model No. E6553, black handset on 11.08.2015, copy of which invoice is at Exhibit A of complaint. Complainant says he used the handset till October 2015, and there were some problems in it, so he visited the authorized service center of O.P.1 on 13.10.2015, where O.P.2 checked and took in the handset for repairs and gave a job sheet, wherein problems were mentioned as overheating, battery drain fast and also give replacement to Complainant. Copy of jobsheet is at Exhibit B of complaint. Complainant states that on 9.11.2015 he sent mail to O.P. that even after one month of giving handset for repairs to O.P.2 he has not received it and it was not repaired. Complainant received reply dt. 10.11.2015 from O.P.1 stating his query has been registered and they will endeavour the complaint within 48 hours. On same date Complainant received email from O.P.1 that the handset is ready and Complainant should contact O.P.2 and collect the handset. Accordingly Complainant sent his friend to O.P.2, but he told Complainant that people at service centre were uncooperative. Complainant states that his friend was shown the handset by O.P.2, and she was shocked to see the handset was physically damaged and O.P.2 insisted to pay Rs.114 towards service, and she was told that she would have to pay for it even though it was under warranty.

b) Complainant states that he wrote an email to O.P.1 on 25.11.2015 and placed all facts on record, and requested O.P.1 to replace the handset or refund the amount of handset forthwith. By reply dt. 26.11.2015 O.P.1 told Complainant to visit near most service centre as final decision would be taken by them post assessment of device. Accordingly his friend once again visited O.P.2 and showed them the email of O.P.1 for replacement of handset or refund, but they were very rude, and stated that replacement or refund is not within their jurisdiction and they should goto O.P.1 for the same. Copies of emails sent to O.P.1 is at Exh C, C-1, C-2, C-3 and C-4 as well as photo of damaged handset. Complainant states that he has a long standing relationship with O.P.1 and was highly disappointed with the attitude and response of such international brand company. Complainant states that despite knowing there is a manufacturing defect in the handset O.P.1 has taken him for a ride and he has to run from pillar to post for refund, repair or replacement of handset.

c) Complainant states all quality about the handset as represented by O.P. has been false, and even the warranty of performance, length of life of handset stated by O.P.1 is false as well. Complainant states that the attitude of both O.P. was different at the time of purchase and they were totally arrogant at the time of service. Complainant states that he has sent mails and contact O.P.1 for refund of charges paid for repair of handset, but both Opposite Parties have only ignored his requests so far. After going from pillar to post on 18.2.2016 Complainant sent a legal notice to O.P.1 & 2 through his Advocate stating all facts and calling upon them to replace the handset or repair the same, but there has been no communication from O.P. whatsoever, neither they have replied to the notice. Copies of legal notice and acknowledgement receipt is at Exh-D & D1 of complaint. Complainant therefore prays for refund of claim amount along with interest, compensation and costs.

3.              After admission of complaint, notice was issued to Opposite Parties 1 & 2, who appeared before the court and filed their joint Written Statement(W.S.). O.P.1 & 2 state that as a goodwill gesture they repaired Complainant’s handset free-of-cost even when the warranty had become void due to physical damage, attributable to negligence/mis-handling by Complainant, and the same is lying with O.P.2 since 08.03.2016, a copy of letter dt. 14.7.2016 sent to Complainant is at Annexure B of (W.S.) O.P.1 & 2 rely on judgment of Shivprasad Paper Industries v/s. Senior Machinery Company I (2006) CPJ92 (NC) passed by NCDRC, which copy is at Annexure C of W.S. where it has been held that “……an equipment or machinery cannot be ordered to be replaced if can be repaired.”

4.                O.P.1 & 2 state that Complainant was orally informed about dent/missing piece in subject handset, and was told that more information will be given once the same is inspected by service engineer. After admitting the handset on 13.10.2015 and thorough inspection, it was found that display in the handset was not functioning due to physical damage, which is due to negligence of Complainant. Photos of damaged handset is at Annexure D of complaint. Due to mis-use and negligence of Complainant the handset was ineligible for free-of-cost repair service, but Complainant refused to pay. As per company policy the warranty on product becomes void when there is any physical damage of the product, which has been clearly stated in the product warranty Terms & Conditions. And accordingly the warranty on handset of Complainant was null and void. O.P.1 & 2 deny there was any manufacturing defect in the handset and allegations of misbehavior by Complainant, rest all averments and allegations made by Complainant is denied by O.P. who also rely on the judgment of Charan Singh v. Healing Touch Hospital AIR 2000 SC 3138, praying for dismissal of complaint with exemplary cost.

5.                  Complainant has repeated the same averments in his Affidavit of Evidence as made in his complaint. In his Written Arguments, Complainant has pointed to the description of issue made in the job sheet, which states “touch not working, overheating and battery drain fast, and has put a remark under condition of set section: Scratched Minor. In the same jobsheet, the handset being within warranty is also mentioned, and if the handset was damaged and outside warranty then O.P.2 would not have accepted the same. Rest all the averments made in the written arguments are same as the complaint and Affidavit of Evidence.

6.                 Both parties have also submitted pursis adopting the pleadings made in their Affidavits and Written Arguments as their oral arguments and stated that they do not wish to make any oral arguments in the matter. After going through all documents in the matter the following points arose for our consideration :

REASONS

7. As to Point No. 1 to 3:                     The complaint of Complainant is that O.P.1 & 2 have damaged his handset and are charging him for repairing his handset which is within warranty period. O.P.1 & 2 on their part state that despite being out of warranty and in a damaged condition, as a goodwill gesture they have repaired handset of Complainant, and he should collect it back after paying the requisite charges. When a product is under warranty, then under which provision O.P.1 & 2 is asking Complainant to pay charges for repairs is not explained by them. When a product is under warranty it is understood that all repairs are done free of cost, and as relied upon by Complainant it can indeed be seen that the handset is purchase bill is dt. 11.8.2015 and he has taken it to service centre of O.P.2 on 13.10.2015, within a short span of just two months after purchase.

8.                    The averment of O.P.1 & 2 that warranty was void due to physical damage, cannot be corroborated, as it is not supported by the job sheet attached at Exh-B of complaint, which indeed notes only “Scratches Minor” under the heading ‘Condition of Set’. Further the photographs of handset annexed at Exh-C4 of complaint, as well as photo of handset at Annexure D attached to Written Statement of O.P.1 & 2 shows a similar appearance of condition of Complainant’s handset. The argument therefore of Complainant is valid that if the mobile was not within warranty and if it was in a damaged condition, then how was it accepted by O.P.2 Service Centre and how they have not made any adverse notings in the job sheet dt.13.10.2015.

9.                    We find merit in this argument of Complainant, because if there was any prima facie lacuna with respect to Complainant’s handset, then that would have been noticed by service centre at the threshold before accepting handset for repairs, and would have also been mentioned in the job sheet. In the absence of such a noting, averments made by O.P.1 & 2 in their written statement can only be considered as defence taken by them for the sake of this complaint, but not supported by any documents.

10.                  The photos of handset relied upon by Complainant and by O.P.1 & 2 show that the top corner portion of the handset is broken, however it looks improbable that the said breakage would render the handset completely useless. Be that as it may, we opine that Complainant could have paid Rs.114 and collected the handset after repairs from O.P.1 & 2, so as to put an end to this dispute, but instead both parties have preferred to pursue this complaint.

The job sheet at Exh-B of complaint also has a noting which reads as “Model no.C5302, IMEI No.-355810054949196, Standby given to customer” – from which it is understood that while accepting the faulty handset for repairs, a standby replacement handset was given to Complainant for use. Complainant has not made any averment about the said replacement given to him, however we take it into consideration that Complainant is still in possession of the said replacement handset and is making use of the same.

11.                  In the circumstances of this case, and after going through all documents on records, we say that as the handset was under warranty, O.P.1 & 2 could have waived off Rs.114/- charges and handed the repaired handset to Complainant. To that extent we opine they have been deficient in service towards Complainant. But as Complainant was already given a replacement handset by O.P.1 & 2 while accepting his handset for repair, it cannot be agreed that he was completely left helpless, therefore we opine that Complainant is partly entitled to the prayers made for. We answer Points No.1 to 3 accordingly.

12.       All pleadings in present case is made in English, hence the judgment is pronounced in English. Considering the facts and circumstances we proceed to pass the following order :

O R D E R

1.        The Consumer Complaint No. CC/207/2016 is partly allowed.

2.        Opposite Parties 1 & 2 are jointly and severally directed to handover completely repaired handset, free of cost to Complainant within one month from the date of this order. If the same handset cannot be provided to Complainant, then another handset of similar configuration and value should be identified and provided to Complainant within 3 months from the date of this order. At the time when Complainant receives such new handset, then the replacement handset given to him by Opposite Party no.2 for use to be returned back to them.

3.        Opposite Parties 1 & 2 are jointly and severally directed to pay Complainant Rs. 6,000/- (Rupees Six Thousand only) towards costs and compensation for pursuing this complaint.

4.        Copy of the final order be given to all parties as per provisions of Consumer Protection (Consumer Commission Procedure) Regulations, 2020 Regulation 21(1) and Regulation 18(6).

5.      Certified copy of the final order be given to all parties as per provisions of Consumer Protection (Consumer Commission Procedure) Regulations, 2020  Regulation 21(1) (3).

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