Delhi

North East

CC/274/2015

Shri Jitender Rawat - Complainant(s)

Versus

Sony India Pvt. Ltd. - Opp.Party(s)

28 Aug 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 274/15

 

In the matter of:

 

	Shri Jitender Rawat S/o Shri Ashok Rawat R/o:- H.No. V92/3 Arvind Nagar, Garhi Mendu, Bhajanpura, North East Delhi-110053	Complainant
	Versus
1         2	Sony India Pvt. Ltd. A-31, Mohan Co-operative Industrial Estate Mathura Road, New Delhi-110044   Sony Service Centre 4647, West Guru Angad Nagar, Gurudwara Road, Near Pillar no. 26 Delhi-110092	Opposite Parties

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

05.08.2015 28.08.2020 28.08.2020

 

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Brief facts of the complaint are that the complainant had purchased a Sony Xperia C2305 mobile handset bearing IMEI no. 353267062319015 manufactured by OP1 for a sum of Rs. 17,305/- vide receipt dated 04.06.2014 from Croma Electronics, Connaught  Place, New Delhi. The subject handset carried a warranty of two years which was to expire on 03.06.2016. However, the subject handset started malfunctioning within six months of its purchase and stopped responding to commands and therefore the complainant submitted the same for repairs on 17.02.2015 with OP2, Authorized Service Centre (ASC) of OP1 against which OP2 issued a computerised slip to the complainant and asked him to visit a day later. The complainant went to OP2 on 18.02.2015 when he was handed over the subject handset in working condition but the complainant noticed that the handset had become a bit slow. After sometime, the subject handset became totally dysfunctional and dead and when the complainant took the same to OP2 for repairs, OP2 refused to repair the same. The complainant filed a complaint against OPs before Delhi Govt. Mediation and Conciliation Centre, Delhi in June 2015 but nothing conclusive came forth and the mediation proceedings failed due to parties not been able to arrive at any settlement and the file was closed vide order dated 24.06.2015. Thereafter, OP1 vide letter dated 25.06.2015 to the complainant offered to exchange the subject handset with a new one on complainant paying 80% of the current maximum retail price of the new model but complainant did not accept the said offer alleging that the offer made by OP1 was to take advantage of its own wrong. Therefore alleging unprofessionalism, arbitrariness, unfriendly attitude towards customer and deficiency of service on the part of OPs, the complainant was constrained to file the present complaint praying for issuance of directions against the OPs to replace the defective handset with a new one or in the alternate refund the price thereof i.e. Rs. 17,305/- alongwith compensation of Rs. 10,000/- towards harassment and litigation charges.
2. Complainant has attached copy of purchase invoice (illegible), copy of complaint by the complainant address to Delhi Mediation Centre, copy of order dated 24.06.2015 by Delhi Government Mediation Centre of file closure and copy of letter dated 25.06.2015 by OP1 to complainant by offering exchange of handset on payment of 80% of the cost of new handset.
3. Notice was issued to the OPs on 28.06.2015. OPs entered appearance and filed its joint written statement in which, while admitting the factum of the purchase of the subject handset by complainant, took the preliminary objection that the complainant had first approached OP2 on 17.08.2014 reporting problems of capacity / charging against work order number W114081700359 against which complaint, the hardware part  (Micro USB connector) was replaced and software was upgraded and the handset was handed over back to the complainant the same day. Thereafter, the complainant brought the subject handset to OP2                       on 13.01.2015 with problem of no power on (phone dead) and on examination, the handset was found affected by liquid ingress with clear liquid marks on the PCB (motherboard) and therefore since the warranty on the subject handset was accordingly rendered void, the complainant was given repair estimate of Rs. 7809/- + Rs. 350/- for repairing the said phone on chargeable basis which estimate was rejected by him. OPs further submitted that liquid ingression is possible in a handset while its ports are open or not closed tightly and it is caused due to external factor and not inherent to the handset and in such a circumstance, the warranty stands void as per the company policy and repairs of such a handset is on chargeable basis to be borne by the customer himself as per the Terms of Warranty. Therefore, the OPs were not liable to repair the subject handset free of cost or replace the same. OPs therefore justified their letter dated 25.06.2015 to the complainant as good will gesture of offer of a paid upgrade or exchange with a refurbished handset on payment of 80% of the value of the new handset. OPs relied upon the judgment of Hon'ble Supreme Court in Bharathi Knitting Co. Vs. DHL World Wide Express Courier Division of Airfreight AIR 1996 (SC) 2508 of limited liability and binding terms of warranty and judgment of Hon'ble National Commission in Punjab Tractor Ltd. Vs. Vir Pratap (1997) II CPJ 81 (NC) of no deficiency of service and no entitlement to relief where complaint has been promptly attended to and lack of reliable evidence by complainant to prove his case. On merits, OPs resisted the complaint on grounds that since subject handset was suffering from liquid ingression rendering the warranty void and the complainant having rejected the offer of estimate of repair which was to be done on chargeable basis, he had no occasion to approach the OPs in any matter and is rather trying to take advantage of his own wrong / fault of causing liquid damage to the subject handset. Lastly, OPs urged that the complainant has made baseless and bald aspersion on the OPs of arbitrariness and deficiency of service and therefore prayed for dismissal of the complaint. OPs have attached copy of limited warranty terms and conditions highlighting the warranty period of one year from the date of purchase to be rendered void in the event of normal wear and tear, due to misuse or failure of the product due to accident, software of hardware modification or adjustment, acts of God or damage resulting from liquid and copy of letter dated 25.06.2015.
4. Rejoinder and evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon as Ex CW1/1 to Ex CW1/4.
5. Evidence by way of affidavit was filed by OPs through its service officer exhibiting copy of board resolution / authorization, copy of warranty terms and conditions, coloured picture of the internal part of the subject handset i.e. its PCB and letter dated 25.06.2015 as exhibits EX OPW1/1 to OPW1/4. The OP also filed an expert report of its service officer who had inspected the subject handset at OP2 and had observed clear liquid marks on its PCB.
6. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance / defence. The complainant was directed vide order dated 04.01.2018 to file legible copy of the purchase invoice of the subject handset but the complainant instead vide application dated 07.02.2018 expressed his inability to produce the same on ground of it being untraceable and prayed for exemption. The OPs admitted to the factum of purchase of the subject mobile phone and submitted that the copy of the invoice was not even in their possession / record and therefore the application was allowed and filing of the copy of the invoice was dispensed with. In hearing held on 17.07.2019, OPs were directed to file copy of work order / job sheet dated 17.08.2014 and 13.01.2015 which job sheets find mention / reference in the written statement filed by OPs on the basis of which, the OPs took the defence of the subject handset suffering from liquid damage rendering its warranty void and repair on chargeable basis but the said job sheets were not produced on record by the OPs. However, OPs failed to place the same on record despite several opportunities and therefore its right to file the same was closed vide order dated 17.01.2020 and the same shall not be considered as defence of OPs as the same stands uncorroborated.
7. We have heard the arguments addressed by the complainant alongwith his counsel through video conferencing and have given our anxious consideration to documents placed on record by all sides. The factum of purchase of the subject handset is not disputed. As per complainant’s own admission, the subject mobile phone was taken for repairs by complainant to OP2 in February 2015 i.e. after eight months of its purchase and was returned repaired in working condition. The warranty was valid for a period of one year on the subject handset which was to expire in early June 2015 but as per the OPs, when the handset was brought to its service centre in January 2015, it was found to be liquid ingress with clear liquid marks on PCB rendering the warranty void and accordingly repair charges estimated was given to the complainant. The onus to prove liquid damage therefore lied squarely on the OPs as their primary defence for refusal to repair the handset free of cost was that the subject mobile phone was rendered out of warranty due to liquid ingress. The OPs did not file the two work orders referred to in its written statement and therefore the same cannot be admissible as evidence for want of corroborative documentary proof. However, OPs placed on record coloured picture of the PCB / internal part claiming to be that of the mobile phone in question alongwith expert report on affidavit by its service officer in support of its defence.  The OPs in our opinion have failed to adduce their best evidence to support its defence whereas the onus squarely lied on OPs to prove the defects in the subject mobile phone by way of job sheets. The Hon'ble National Commission held in Eicher Motors Ltd. Vs. Mahindra Nirmal Kumar Nirmal 2000 (1) CPR 89 (NC) that manufacturing defect should be resolved on the basis of evidence adduce or a technical expert opinion. It is not the case of the complainant that the OPs had charged for repairs of the subject mobile phone within the warranty period which they were even otherwise under legal obligation to undertake repairs free of charge and as per the settled law, any repair after warranty period is chargeable as was also held by Hon'ble National Commission in Godrej GE Appliances Ltd. Vs Satinder Singh Sobti 2000 (1) CPC 602 (NC) that the manufacturer cannot be directed to provide free service after warranty period and the complainant cannot claim free service after the expiry of the warranty period. In the present complaint the complainant has relied solely upon his affidavit which in our considered view is not sufficient to hold that there was manufacturing defect in the mobile handset because the complainant is not an expert. But even the OPs have failed to adduce any evidence on record to prove the liquid damage in the handset. Simply, non-repair of mobile phone during warranty period does not ipso facto prove manufacturing defect and therefore the plea of the complainant of such allegations is defeated on concept of ipse dixit. However, the OPs failed to prove or place on record conclusive evidence of liquid damage of the subject mobile phone. We therefore do not find force with the defence taken by OPs for non-repair of the subject mobile phone on grounds of liquid ingress which remained un-established and hold them deficient in service for having refused to repair the subject handset free of cost while it was still under warranty in January 2015. Notwithstanding, the complainant has admittedly used the subject handset uninterruptedly for a period of 7-8 months and therefore cannot seek full refund. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Appachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half. Therefore relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of mobile and partly allow the complaint and direct OP1 and OP2 jointly and severally to refund sum of Rs. 8000/- (depreciated cost of mobile) alongwith compensation of Rs. 2,000/- towards mental harassment inclusive of litigation charges to the complainant. Let the order be complied with by OPs within 30 days from the date of receipt of copy of this order.

    

8. Let the copy of this order be sent to each party free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.

9.  File be consigned to record room.

              10.  Announced on  28.08.2020

 

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member