Author:SHRI RABIDEB MUKHOPADHYAY

This is an application u/s.12 of the C.P. Act, 1986.

TheComplainant stated that it is a recognised Consumer Association/Voluntary Consumer Organisation within the meaning of Section 12(1) (b) of the Consumer Protection Act, 1986. The Complainant VCO is submitting this petition/Complaint on behalf of SRI JOYDIP BHATTACHARYA, who approached to the organisation seeking redressal of the Consumer dispute as suffered by him. He purchased a mobile set,“SONY XPERIA XA DUAL (GRAPHITE BLACK) XOOOL5BVNR” having IMEI NO 358129077151236 for a consideration of Rs. 15485/- through online on 10^th January, 2017 with a warranty period of 1 year.

That in the month of May, 2017 some problems started to develop like set getting hanged and call could not be made through the hand set.

That in the month of September, 2017 the handset, in question, had been displaying various problems like:-

a) Automatically opening and closing of various apps.

b) The set could not be disconnected after finishing the phone calls.

c) Another phone calls used to connect while talking in other call and phone calls cannot be disconnected.

d) The mobile screen is being detected trembling and that could not be stopped.

e) Flash light was suddenly on and cannot be stopped.

The aggrieved Complainant also stated that he had deposited the defective set to Sony Service Centre, O.P.-2 on 20/SEPTEMBER/2017 and received the set after repairing on 25/SEPTEMBER/2017 with an assurance that the set, in question, was free from any defect. Unfortunately, the same problems started within 24 hours. He had to visit the service centre, O.P.-2 time and again with the same defect and the said Service Centre, O.P.-2 had tried to repair the set. Sometime the Service Centre, O.P.-2, returned the set saying it was ok and some time they kept the set for repairing.

Subsequently, problem was being increased and even normal phone calling was not being possible.

In the complaint of aggrieved Complainant, he stated that he sent an email to the Sony India Ltd. O.P.-1 on 18/11/2017 and the second on 26/11/2017 regarding his grievance. He deposited the set, in question, to the Service Centre, O.P.-2 as per the advice of O.P.-1 on07.12.2017 but the O.Ps. did not hand over the repaired set till today.

The aggrieved Complainant averred on considering the bitter experience he did not agree to get the set repaired as he suspected that the set must have some inherent manufacturing defect which is irreparable or replacement as there is no guarantee that the new set would be 100  percent free from all technical difficulties and reported the matter to the O.P.-1 and O.P.-2 through Speed Post on 07.12.2017 seeking refund of the purchase amount that is Rs. 15,485/- but no reply from those end was received.Finding no other alternative, SRI JOYDIP BHATTACHARYA, the aggrieved Consumer approached the Voluntary Consumer Association seeking redressal of his Grievance and on the basis of his prayer, this Voluntary Consumer Association, being the aggrieved Complainant in this particular case has come to this learned Consumer Dispute Redressal Forum for proper redressal and justice.

Keeping in view all the facts and circumstances of the Complaint and holding the O.Ps. guilty for selling defective goods and providing deficient services to the aggrieved Consumer as well as for adopting unfair trade practice as well as for causing mental agony, harassment, emotional sufferings, physical discomfort, loss of business, loss of time and incurring extra expenditurethecomplainant prayed for direction upon the O.Ps. to refund a sum of Rs.15,485/-, Rs. 10,000/- as compensation to the aggrieved Complainant and Rs. 10,000/- in favour of theComplainant.

Written Version of O.Ps. - 1 & 2

Learned Advocate for the O.Ps. stated as per the records of the Company the aggrieved Complainant purchased one SONY XPERIA XA DUAL/F3116 with IMEI No. 358129077151236 on 10.01.2017 after a detailed demonstration of the features, functions, applications along with the detailed explanation of all the warranty terms and conditions of the aforesaid mobile.

That the O.P.-1 provided 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.

That after enjoying the handset for more than 9 months, the aggrieved Complainant for the first time approached the service centre on 20.09.2017 raising an issue of “Touch not working properly” in the aforesaid mobile handset. The O.P.-2 (Service centre) without any delay immediately attended the aggrieved Complainant and inspected the handset. After carrying out the necessary inspection, the service centre replaced the necessary parts. Although the issue was resolved by carrying out a minor repair action but considering the aggrieved  Complainant to be valuable customer, the service  centre replaced the necessary parts(s).The said replacement of parts was done absolutely free of cost. Nothing was charged from the aggrieved Complainant for carrying out the replacement of parts. Everything was done absolutely free of cost.

That lastly, the aggrievedComplainant approached the service centre on 17.10.2017 raising an issue of “Touch Intermittent working” in the aforesaid mobile handset. The Service centre without any delay immediately attended the aggrieved Complainant and inspected the handset. After carrying out the necessary inspection, the service centre observed that there was no issue in the handset. The handset was working normally and as per its specification. Only software was required to be updated and nothing else. The handset was working normally and without any issues. The said fact was very well conveyed to the aggrieved Complainant.

It is submitted by the O.Ps. that software update cannot be treated as solution for rectifying any inherent defect. It is normally updated from time to time for the smooth and better functioning of the handset. It is the responsibility of the customer to update the software and if the customer doesn’t know how to update the software then in such a scenario, the service centre usually assists the customer to update the same. In the present case as well the aggrieved Complainant approached the service centre raising an issue with the handset but upon inspection no issue was found in the handset and only software was required to be updated. However, the service centre updated the software and delivered the handset to the aggrieved Complainant in a proper working condition. Nothing was charged from the aggrieved Complainant for updating the software.

It is submitted that the aggrieved Complainant was very well informed that there was no issue in the handset. But the aggrieved Complainant instead of appreciating the free of cost services preferred to file this present complaint on the pretext of baseless allegations. The sole purpose of the aggrieved Complainant seems to derive undue benefits from the answering O.Ps.

It is submitted that the parts of handset were replaced only once and that too after 9 months from the date of purchase and the same was replaced without causing any inconvenience to the aggrieved Complainant and that too free of cost. Thereafter, whenever the aggrieved Complainant visited the service centre, there was “No Issue” found in the said handset and only software was required to be updated. In such scenario, it wrong on the part of the aggrieved Complainant to allege that the handset was having some inherent defect. The present Complaint in such circumstances is liable to dismissed.

That no material evidence has been placed on record by the aggrieved Complainant which says that the handset in question was having some inherent defect. The aggrieved Complainant has also not furnished any document which establishes the fact that the handset in question was having some manufacturing defect. In the absence of any strong proof, the present Complaint is liable to be dismissed.

The Opposite Parties referred cases of Punjab Tractors Ltd. Vs Vir Pratap (1997) II CPJ 81 (NC) regarding reliable evidence in support of loss suffered by the Complainants. Other case references are Sabeena Cycle Emporium Chennakhaada Vs Thajes Ravi M.R. Pancha Villa Vedar Ezkhone P.O.(1992) I CPJ 97 and Keshab Ram Mahto Vs Hero Honda Motors Ltd. and another I (2003) CPJ 244asking for clear evidence by way of expert opinion.

O.Ps. also stated that the aggrieved Complainant approached the service centre on 20.09.2017 for the first time (para 2 page 8 of W.V. and at para 3).They stated that the issue regarding the handset was duly resolved by the service centre by carrying out the replacement of parts. At para 9, page 9 of W.V. the O.Ps. stated that the Complaint is not maintainable.

Points for Discussion

1) Whether the aggrieved Complainant is a Consumer under the O.Ps.;

2) Whether the O.Ps. are deficient in rendering service to the aggrieved Complainant;

3) Whether the aggrieved complainant deserves relief.

Decision with Reasons

1) It appears from letter dated 05.12.2017 of the aggrieved Complainant that the mobile phone in question developed problems after 2/3 months of purchase in January, 2017.The defects involved in the mobile phone are stated in the said letter. It is also stated in the letter that the aggrieved Complainant had gone to Sony Service

Centre in September, 2017 with the mobile phone and after 2/3 days the said service centre returned the phone to the aggrieved Complainant after solving the problems though within 24 hours the phone again showed problems and was unusable.

            2) As per the letter, the aggrieved Complainant visited the service centre several times for the problems but the service centre blamed him that he could not properly use the phone without caring about the handset problems. It is also stated by the aggrieved Complainant that he had sent email to “Service”on18.11.2017 and again on 26.11.2017 requesting for refunding of the purchaseprice Rs. 15,485/-. He expressed suspicion in the letter dated 05.12.2017 that the mobile set has some inherent manufacturing defect which is irreparable.

            3) The aggrieved Complainant filed postal track report showing delivery of the letter on 08.12.2017 to Sony India Pvt. Ltd. and on the same date to Teknoplaza. Moreover, the aggrieved Complainant filed copy of email sent to “service”  on 18 November, 2017 indicating the problems and requesting for change of the phone with another model and same facilities including 4G,LTE etc. otherwise to refund the money. The aggrieved Complainant also filed copy of email dated 26 November, 2017 to “service” referring the email dated 18/11/2017 stating they had discussed at length of the mobile set problem and O.Ps. advised to take out SD card from the mobile phone. The aggrieved Complainant wrote in the email that the service centreTeknoplazahad advised him to stop the net service most of time and to use it when it was required. In the said email, the aggrieved Complainant stated that O.Ps. were not serious and not giving an importance and asked them to change his mobile set with a good one in the last email. The aggrieved Complainant had asked the OPs. to intimate their decision about his future course of action.

            4) But the Opposite Parties denied at para 5 of W.V.(page 8) the contents of Complaint para 11 regarding sending of emails. Such denial is not right as we have already stated about the copies of emails and the aggrieved Complainant has also stated at para 16 of the Affidavit in chief.

            5) Regarding Complaint para 12, the O.Ps. denied at W.V. para 5 (page 8) the contents of that para and asked the aggrieved Complainant to prove. The Complaint para 12 is regarding deposit of the mobile set with the service Centre for repair.

            6)  If we hold for the sake of argument that the Complainant did not deposit the mobile phone with O.P.-2, then how could they observe and repair and make observation on the Service Job Sheetunder Customer Complaint Headas “Hanging, others INT ON OFF PROBLEM, HANGING PROBLEM, AUTO MAKE CALL & CEIVE CALL PROBLEM, AUTO APPAS OPEN CLOSED PROBLEM, FLASH AUTO ON PROBLEM” and also showing “HANGING PROBLEM, OTHER PROBLEM NOT FOUND” under ASC Comments. This service centre job sheet signed by both the customer and the receptionist of the service centre on 07.12.2017 appears to be genuine.How can OPs deny the same?

But the question arises if the mobile set was not deposited with the service centre, how could they make observations stating the hanging and other problems was not found, etc. as mentioned above. So, there is no question that the mobile set was deposited with the service centre?Now the question arises whetherthe said mobile phone was handed over to the aggrieved complainant or not. If they had handed over the same to the aggrieved Complainant, the service centremust have hadhis signature with endorsement ”received”, but we find no such receipt being  given by the aggrieved Complainant on the job sheet. The aggrieved Complainant stated at para 17 of the evidence on affidavitthat he had submitted the defective mobile set on 07.12.2017 to O.P.-2 and relevant job sheet has been enclosed. It is also stated at that para of evidence in chief that there is serious communication gap between O.P.-1 and O.P.-2 for which O.Ps. are unaware about the status of the mobile set. We think this might be the fact.

            7) It remains the fact that the mobile phone suffered various defects for which the aggrieved Complainant had to report for repair. Whether the mobile set has any manufacturing defect or not, we cannot infer about this right now. But it remains the fact that the mobile set was not functioning properly and the OPs mentioned, inter alia, at para-5 of WV (page-4) “It is submitted software update cannot be treated as solution for rectifying any inherent defect….” It indicates that the ghost of manufacturing defect was always haunting the OPs.  It can safely be stated that there must have some defects in the mobile set, which the O.Ps.either did not repair properly and sincerely or such defects remained beyond repair. At W.V. para 4, page 3, O.Ps. admitted that software was required to be updated and nothing else and at para 5 (page 4) of W.V. the O.Ps. stated software updated cannot be treated as solution for rectifying any inherent defect (as already quoted) and the service centre updated the software and delivered the hand set to the Complainant in a proper working condition though nothing else was charged from the Complainant for updating the software. It remains the question that after purchase of mobile set, why was it required for updating for functioning of the same? After updating, the mobile phone did not show normal functioning also. The said phone set must have been deposited for rectification to the service centre on 07.12.2017.

 Crores of people use mobile phones. Is it the common fact that after few months of purchase do the phones require updating for normal function and in absence of which the phones will show abnormal performance? Possibly, it is not. This could be possible only when the mobile phone has really some defects. In the instant case also, the mobile phone might have some defects as already discussed.Such defects needs to be fully repaired up to the satisfaction of the customer.

We need not discuss in detail the contents of para 11, 12 and 13 (W.V. pages 6 to 7) and case references given therein because we also agree that a layman cannot certify about the manufacturing defect of a mobile set or an engine ora machine and only an appropriate engineer/expert can do so.

8) During final hearing the complainant/representative of the VCO appearing for the aggrieved Complainant filed a petition for granting of money amounting to Rs. 10000/- with total expenditure incurred by them in connection of the case. They also enclosed notification no. G.S.R 89 (E) dated 13 February, 2014 of the Hon’ble National Commission in which claim for fees has been approved for appearance on behalf of aggrieved Complainant by an agent, Non-advocate, representative of Social Organisation. In the Complaint also, the complainant prayed for grant of Rs. 10,000/- at para 18 (iii) of the Complaint (page 3). The Complainant did not file the headwise expenses at the time of filing the Complaint.On the final argument, theydid not file relevant bill/vouchers for the expenses shown in the said petition. However, as a matter of reality and in accordance with his said notification of the Hon’ble National Commission, we may consider some expenditure in favour of the VCO Complainant.

            9) At the final argument, Ld. Advocate for the O.Ps. did not appear and so, O.Ps.failed to advance arguments. So, we heard the Complainant and make the judgement on merit on the basis of documents available on record.

            10) The Aggrieved Complainant purchased the mobile set against consideration of Rs. 15485/-. So, the aggrieved Complainant is a Consumer under the O.Ps. in terms of section 2 (1) (d) (i)/(ii) of the C.P. Act, 1986.

            The O.P.-2,Teknoplaza (Sony Service Centre) acting as agent of O.P.-1 failed to repair the mobile phone up to the satisfaction of the Complainant. The Complainant purchased the mobile set for his use but such service has been interrupted repeatedly and the O.P.-2 could not address the problem.So, both the O.Ps. (the agent-O.P.-2 and its principal, O.P.-1) are deficient in rendering proper service to the Complainant within warranty period of 1 year. So, O.Ps. are deficient in terms of section 2 (1)(g) read with section 2 (1) (o) of the Act.

            As the aggrieved Complainant has been deprived of the service of the mobile set and subjected to physical harassment and mental agony, he observes some relief. But it also needs to be noted that he used the mobile phone within warranty period for some months before he reported for defects.

            In the circumstances, we are of the considered view to pass

ORDER

That the Complaint be and the same is allowed on merit against the Opposite Parties in terms of section 13 (2) (b) (i) of the C.P. Act, 1986;

That the Opposite Parties are directed to jointly and severally repair the concerned mobile set to fully working condition and up to the full satisfaction of the aggrieved Complainant within 30 days from the date of this Order;

OR,

To replace the defective mobile set with a new one of the equivalent price and model, within 30 days from the date of this Order and in that case, the aggrieved Complainant has to pay to the O.Ps. 10  percent of the price of the new mobile set to be replaced, within 30 days from the date of this Order;

OR,

To refund the price of the mobile set (Rs. 15485/-) against deposit of the old one to the aggrievedComplainant after deducting 10  percent of the same, within 30 days from the date of this Order;

(Option of O.Ps. shall be final in this matter).

            That the Opposite Parties are directed to jointly and severally pay Rs. 4000/- as compensation for physical harassment and mental agony to the aggrieved Complainant and Rs. 6000/- to the Complainant VCO (Meghnad Saha Road Aahana Foundation) for their expenses, within 30 days from the date of this Order;

That Non-compliance of any of above Orders by the Opposite Parties within the stipulated time shall entitle theaggrievedComplainant/Complainant to put the Order into execution in terms of section 27 of the Act ibid.

Let copy of the judgement be handed over to the parties when applied for.