Delhi

North East

CC/177/2015

Sohan Pal - Complainant(s)

Versus

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

18 Jan 2019

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. 177/15

 

In the matter of:

 

	Sh. Sohan Pal S/o Om Prakash R/o H. No. A-3/52, Nand Nagri Delhi-110093.	Complainant
	Versus
1.         2.	Sony India Pvt Ltd A-31 Mohan Co-operative Industrial Estate, Mathura Road, Delhi-110044.   Star Mobitel Ltd G-26, South Extn. Part-1 New Delhi-110049. UG-231, Promenade Mall Vasant Kung, New Delhi-110070.	Opposite Parties

 

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

20.05.2015 18.01.2019 18.01.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the material facts giving rise to the filing of the present complaint are that the complainant had purchased a Black Sony mobile handset bearing model no. D5102 manufactured by OP1 on 25.01.2015 vide bill no. D5780 from OP2 (retailer) for a sum of Rs. 17,800/-. However, the said mobile was malfunctioning from the very date of purchase on starting of camera when it would get heated up and would automatically get switched off. The complainant went to F1 Info Solution and Services Pvt Ltd, the Authorized Service Centre (ASC) of OP1 on 26.03.2015 for repair of the same whereby vide jobsheet no. 15032601217, the said ASC repaired the said mobile phone and handed it over back to the complainant but the problem therein persisted for which the complainant again reached the ASC of OP1 on 02.04.2015 for repairs on which date he was informed that the motherboard of the said mobile had to be changed and the ASC of OP1 changed the motherboard vide jobsheet no. 15040202399 but this time the ASC also change the IMEI number of the said mobile from 354127060691006 to 354127060139188 and handed over the mobile to the complainant. But on reaching home the complainant found that the problem in the handset increased than before in terms of getting more heated up and therefore went again to the ASC on 05.04.2015 for removal of the said problem where the ASC submitted the said mobile and issued a new jobsheet  no. W115040701510 to the complainant and asked the complainant to come after few days to collect the same. When the complainant went on 12.04.2015 and checked the said mobile phone, he found that it was in state of disrepairs and suffered from the same problem. When the complainant lastly visited the ASC on 15.04.2015 to collect the mobile phone, on seeing that there was no rectification of the problem of heating, the complainant refused to receive the said mobile phone and later issued a legal notice to the OPs on 21.04.2015 but got no response thereto. Therefore the complainant was constrained to file the present complaint before this for issuance of directions to the OPs to refund Rs. 17,800/- the cost of the mobile phone and compensation of Rs. 20,000/- for mental agony, harassment and litigation charges.

Complainant has attached copy of retail invoice dated 25.01.2015 for purchase of mobile phone from OP2, copies of jobsheets dated 26.03.2015, 02.04.2015, 05.04.2015, 07.04.2015 and 12.04.2015, copy of legal notice dated 21.04.2015 alongwith postal receipts and copies of e-mails communication between complainant and OP2 dated 08.04.2015, 09.04.2015, and 13.04.2015 regarding repair work of mobile phone.

2. Notices were issued to the OPs on 02.06.2015. Written statements were filed by OP1 and OP2 on 19.10.2015. OP1 in its written statement took the preliminary objection that there was no deficiency of service or unfair trade practice on its part or its ASC since the ASC provided prompt and efficient service to the complainant and the OP1 had vide e-mail dated 11.08.2015, as a goodwill gesture had even offered the complainant a fresh handset in exchange or fresh upgrade from his handset by payment of MRP to MRP difference but the complainant refused to accept the offer. The OP1 denied that the handset in question suffered from any defects as held by ASC on multiple inspections thereof and despite the same working in satisfactory condition, it is the complainant who refused to collect the handset from the ASC of OP1 since April 2015 only to harass the OP1 for unjust enrichment to self by way of the present complaint. OP1 submitted the sequence of Work Order Details undertaken by its ASC with respect the said mobile from 26.03.2015 to 12.04.2015 where the software was upgraded and motherboard was changed free of cost. OP1 further urged that the complainant after having used the said handset issue free for over three months had approached the ASC of OP1 reporting heating trouble with the camera and the ASC had promptly replaced the PCB of the handset and had handed over the same in satisfactory working condition to the complainant. The OP1 alleged that the complainant is a harsh user of the handset, having mishandled the same and failed to follow the instructions as per the user manual and has approached this Forum for refund for defects in the mobile for which he is solely responsible. OP1 denied that the complainant ever faced any issues of overheating after its ASC replaced the PCB of the handset in early April 2015 and rather the complainant has been negligent in handling the internal sensitive parts of handset like PCB since on 05.04.2015 and 07.04.2015, the ASC, on inspection of the handset in question found no issues with it and therefore delivered the handset back to the complainant. OP1 further contended that in so far as the complainant’s legal notice dated 21.04.2015 is concerned, OP1 vide response e-mail dated 02.06.2015 stated in clear terms that the handset in question did not encounter any problems on inspection and therefore was not liable for replacement and expressed its regret to exchanged the handset or refund its purchase value asking the complainant to collect the same from ASC. Lastly, OP1 took the defence that the handset supplied by OP1 was not dysfunctional and no faults were found with the same by the ASC of OP1 and therefore prayed for dismissal of the complaint. OP1 has attached internet version of limited warranty terms and conditions, copy of e-mail dated 02.06.2015 and letter dated 11.08.2015 to complainant.
3. Written statement was filed OP2 in which, while admitting the factum of purchase of the handset in question by the complainant from itself, took the preliminary defence that it being engaged in the Retail Franchise Business, had issued the invoice, terms and conditions at the footnote of which clearly provided that Goods once sold will not be returned and replaced / exchanged. For after sales and service kindly contact respective COMPANY’S CUSTOMER CARE, meaning thereby that change or defect in the product was the sole liability of OP1 and OP2 was not in any manner responsible for after sale services of the products sold by them in the name of OP1 as the said services are provided by ASC of OP1 and therefore the present complaint is without any cause of action against OP2 meriting dismissal. OP2 further took the defence that the warranty over the said mobile is only to be given by the parent company i.e. OP1 and not by retailer i.e. OP2 which is a mere pro forma party in the present case since the complainant himself is mentioning about the ASC which is related to OP1 and has no connection with OP2 which has no liability whatsoever. Lastly, OP2 contended that complainant has neither served any legal notice to OP2 with regard to deficiency in service nor was it ever contacted by the complainant regarding grievance about the handset in question and prayed for dismissal of the complaint.
4. Rejoinders to the written statements of OPs were filed by the complainant in denial / rebuttal of respective defence taken by the OPs and the complainant reiterated his grievance in the complaint.
5. Complainant filed evidence by way of affidavit exhibiting the mobile bill and legal notice to OPs.
6. Evidence by way of affidavit were filed by OP1 in reiteration of his defence taken in its written statement and exhibited letter dated 11.08.2015, e-mail dated 02.06.2015 and terms and conditions of warranty.

Evidence by way of affidavit was filed by OP2 in reiteration of his defence taken in its written statement.

7. Written arguments were filed by the complainant wherein the complainant argued that the heating problem in the said mobile phone was life threatening since it could cause blasting of mobile phone and the OPs failed to rectify such a serious problem which only increased despite repairs / service by ASC of OPs and prayed for relief sought.
8. Written arguments were filed by OP1 and OP2 reinforcing their respective defence. OP1 argued that the problem in the handset, if any that occurred post sale was due to harsh usage by the complainant which cannot be monitored by OP1 post its sale. OP1 further stressed that it had provided free of cost software upgrade and replacement of PCB to the complainant and had even offered replacement vide offer letter dated 11.08.2015 as a goodwill gesture but the complainant refused to accept the same and instead file the present complaint despite there being no manufacturing defect in the said mobile and no deficiency of service or unfair trade practice on the part of OP1 and that complainant should not be allowed to misuse the beneficial legislation of CPA to arm twist the OPs to given to their unreasonable demands by such unnecessary litigation.
9. Written arguments were filed by OP2 reinforcing the defence taken in the written statement and evidence by way of affidavit that it is merely a retailer of mobile phones and sales genuine and original mobile phones to its customers and has no role to play to provide any after sale services to its customers and therefore cannot be held liable for deficiency of service toward the complainant.
10.  We have heard the rival contentions of both the parties and have given our anxious consideration to the documentary evidence placed on record before us.

The factum of purchase of the subject mobile phone in question and it being covered under warranty while it went out of order is not in dispute by both the parties in terms of respective purchase and service record.

The key issues for consideration / adjudication of the present complaint are

(I)- Whether the subject mobile phone in question suffered from manufacturing defect.

2. If yes, the apportionment/ascertainment of liability of OP1 and OP2
3. Relief if any

As regard the first key issue, from the documentary evidence by way of jobsheets filed by complainant and corroborated by work order details placed on record by the OP1, it is established that the subject handset suffered from overheating, poor voice clarity, camera shut down and video time heating issues since March 2015 barely two months after its purchase for which it had to be repeatedly submitted for repairs with ASC of OP1. As per OP1’s own admission, its ASC had diagnosed motherboard problem in the subject mobile phone which was a major defect and had replace the same in April 2015. The motherboard is the back bone of mobile handset and it being found defective and replaced by OP1 speaks volumes and proves beyond doubt that the subject mobile handset was having manufacturing defect from the date of purchase, not to ignore the fact that despite repeated submission of the mobile phone with ASC of OP1, the problem therein persisted and were not cured and therefore allegation made by the complainant regarding the OPs selling defective mobile handset is reliable and can be seen in perspective of the complainant having refused to accept the same on 15.04.2015 finding no improvement therein. The complainant in our view has been deprived of service of his mobile handset for which he had paid. The OPs cannot be permitted to blame the complainant for their own callous attitude in attending to his problem. Even on bare perusal of the terms and conditions of warranty filed by OP1, the warranty stipulated validity for one year from date of purchase and in which period if the product fails to operate under normal use and service, the OP1 or OP2 will, at their option either repair, replace or refund the purchase price of the product in accordance with the terms and conditions stipulated therein but the OPs failed to honour their own limited warranty condition which is a glaring example of deficiency of service on their part.  This issue is therefore decided in favor of the complainant against the OPs that subject mobile handset was suffering from inherent manufacturing defect.

As regards the second key issue of ascertaining / apportioning of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the contention/ arguments/ defence of OP2 of it being a mere retailer not liable for after sale service is unsustainable in law and the liability towards the complainant of dealer and manufacturer is joint and several.

Moreover, OP2 has nowhere specifically denied the defects alleged by the complainant in the mobile handset in question and the defence was limited to wriggling out of its liability. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold a defective mobile handset and failed to provide efficient after sale service and given the manufacturing defect in the mobile handset, offered no sincere proposal to replace the same. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

It is the bounden duty of the seller to ensure that goods sold through it are manufactured as per quality standard and if the product is found defective, such an agent / facilitators who sells the same shall be vicariously liable for loss caused to the purchaser alongwith the manufacturer of the said product. This view was held by Hon’ble NCDRC in RP No. 765 of 2016 decided on 30.03.2016 titled Emerging India Real Assets Pvt Ltd & Anr. Vs Kamer Chand & Anr.

In light of the aforesaid judgment and law settled therein this issue is also decided in favour of the complainant against both the OPs held jointly and severally liable qua the complainant for deficiency of service.

As regards the third issue of quantum of relief, we direct both the OPs jointly and severally to refund the cost of the mobile handset i.e. Rs. 17,800/- to the complainant and we further direct both the OPs jointly and severally to pay a sum of Rs. 6,000/- to the complainant as compensation for mental agony and harassment inclusive of litigation cost.

11.  Let the order be complied by the OPs within 30 days from the date of receipt of copy of this order.
12.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13.   File be consigned to record room.
14.   Announced on 18.01.2019 

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member