DATE OF INSTITUTION: 25.06.2016
DATE OF DISPOSAL: 22.04.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging defect in goods against the Opposite Parties ( in short the O.Ps) and for redressal of his grievances before this Forum.
2. Briefly stated the case of the complainant is that he is a media person and for his professional use he purchased a mobile phone from the O.P.No.4 and the description of said mobile is Model: XPERIA EI DS IMEI No. 352946065244608, on payment of Rs.8,990/- towards the cost of the mobile on 11.07.2014 bearing retail invoice No: SON-BIC-R-0252/14-15 dated 11.07.2014. The said mobile which was manufactured by O.P.No.1 found defective after using for eight months with the problem like de-function of lower key pad. The complainant handed over the mobile set for repairing to the O.P.No.3 during warranty period and it was repaired and returned to the complainant. After some days, again the said mobile was not worked and handed over to the O.P.No.3 on 29.04.2015 vide service job sheet No.W115042902132 for repairing. After repairing, again some other problems persisted and handed it to the O.P.No.3 for repairing during warranty period and the O.P.No.3 issued a service Job sheet No. W115061502478 with customer complain as “hanging, touch screen not working, speaker not working” but the O.P.No.3 mentioned good (Liquid ingression) in conditions of set, warranty category became void and liquid intrusion indicator is Red. But so far neither the mobile set is repaired nor returned to the complainant. When nothing was done, complainant approached the consumer protection organization “VEDIC” and the organization to redress the grievance of the complainant approached to O.P.No.1 & 2 on several dates through email but to no avail. When the mobile was not returned and no reply was received from O.P.No.1 to 3, the complainant constrained to purchase another mobile for his professional use from one Mobile Planet bearing Retail Invoice No. 10 dated 02.08.2015 for Rs.8,100/- bearing Model number Samsung G G360M, IMEI No.357386069411140. It is also alleged that none responding to the notices by the O.Ps speaks volumes against the malafide intention of the O.P. No.1 to 3 and amounts to deficiency in service. As per the warranty conditions which has been mentioned in the warranty card - ‘Sony will repair or replace this product with an equivalent product free of charge’ but so far no action has been taken by the O.P.No.1 to 3 to fulfill their commitments made in the warranty card. Non-fulfilling commitments is tantamount to deficiency in service and printed misleading dialogues of the O.Ps is amounts to unfair trade practice. On account of aforesaid activities of O.Ps the complainant suffered loss financially and has been harassed physically and mentally. Alleging defect in goods and deficiency in service on the part of the O.Ps, the complainant filed this consumer complaint with the prayer to direct the O.Ps to return the amount of Rs.17,090/- towards mobile cost of the both handset and to pay compensation of Rs.10,000/- with interest @10% per annum towards agonies suffered by the complainant physically, mentally and financially and litigation cost in the best interest of justice. The complainant in support of his case has filed copies of the documents like retail invoice dated 11.7.2014 for Rs.8,990/- and invoice No.10 dated 2.8.2015 for Rs.8,100/-, warranty card, service job sheets and the email correspondences made with O.P.No.1&2 and the replies thereof. The learned counsel for the complainant has also filed citations of Hon’ble National Commission in the case of Sony Ericssion India Ltd. Vs. Ashish Aggarawal reported in IV(2007) CPJ 294 (NC). He has also filed another two citations of Hon’ble State Commission of Maharashtra and Himachal Pradesh respectively in the case of Mahesh Vs. Jayant reported in II (2014) CPJ 3C(C) (Maharashtra) and in the case of Tarlok Chand Rajesh Kumar Vs. Harish Bhickta reported in II(2014) CPJ 23 (H) in support of his case.
3. Notices were issued against all the O.Ps but they neither choose to appear nor filed any written version hence they are declared exparte on dated 24.11.2016. The case is also proceeded exparte against the O.Ps on the date of final hearing.
4. On the date of exparte hearing of the case, we have carefully heard the learned counsel for the complainant and have gone through the case record and also perused the materials placed on it. We have also thoughtfully considered the submissions made before us by the learned counsel for the complainant.
On perusal of the case record and after going through the complaint, written argument and other vital documents on the record we found that there is no dispute or doubt that the complainant purchased a mobile on 11.07.2014 for professional purpose from O.P.No.4 bearing Model No.XPERIA E1 DS No.352946065244608 on payment of Rs.8,990/- towards cost of the said mobile. The O.P.No.4 also issued a retail invoice bearing No.SON-BIC-R-0252/14-15 dated 11.07.2014 duly sealed and signed by him as token of acknowledgement. After using for eight months by the complainant, the said mobile found defective with complain like problem in lower key pad and handed over to the O.P.No.3 for repairing. The said mobile again not properly worked hence on 29.4.2015 placed before O.P.No.3 for service vide Job Sheet No.W115042902132. After that the mobile set further found defective with the problems like hanging, touch screen not working and speaker not working. When it was frequently happened, the complainant reported the matter to the O.P.No.3 and finally the set was deposited with O.P.No.3 for repairing vide service job sheet No.W115061502478 dated 15.6.2015. However, the said mobile set could not be repaired properly by the O.P.No.3. It also reveals that the complainant through a consumer organization namely VEDIC issued a notice to O.P. No.1&2 through emails on 23.6.2015 mentioning the details of the defect of the set of which the O.P.No.1 on 23.06.2015, 24.06.2015, 26.6.2015, 30.06.2015 and 06.07.2015 it was replied that the query was registered vide bearing No.1-19764513210 without assurance to respond the query within 48 hours. However, on 29.06.2015 the O.P. No.2 replied to the complainant that the they are aware about the problem vide W115061502478 dated 15.6.2015 with the request to pay Rs.1995/- towards repairing the problem of liquid engrossed with the remark that they can’t consider the same under warranty conditions and pointed out that it was damaged due to external cause. Similarly, in the email dated 26.6.2015, the O.P.No.1 also was assured to be contacted to the complainant to extend best support services but failed to do anything concrete and did not yield any fruitful result. The O.P.No.4 in this case appeared but did not prefer to file his written version of the case and not contested the case hence declared exparte on 24.11.2016. The O.P.No.1 &2 also on notice did not appear and not filed written version of his case and did not came to contest the case. On perusal of the case record we also found that due to the defective mobile set, the complainant purchased another mobile set bearing model No.Samsung G360M, IMEI No.357386069411140 dated 02.08.2015 from Mobile Planet for his professional use on payment of Rs.8,100/- vide invoice No.10 on 02.08.2015. It is also a fact not in dispute the O.Ps not controverted the contention of complainant that the Sony Xperia E1 DS mobile set as discussed above was without any defect. The O.Ps though received the notice from this Forum but did not prefer to contest the case of the complainant. In the aforesaid fact and circumstances of the case and in absence of any controverted contention from the sides of the O.Ps, we are constrained to hold that the said Sony EXPERIA E1 DS model mobile set was defective. Without substantial documentary evidence and technical report the O.P.No.2 can’t contend the said mobile sustained damaged due to external cause and the liquid engrossed was an outcome of that effect. When a mobile set is found defective during the warranty period and it was sent for repairing to the authorized service center time and again for removal of defects but failed to remove the defects of the set properly, it is to be inferred that the said set is suffering from manufacturing defects. The O.Ps can’t be absolved from their liability on the frivolous ground of external damage since it is not established by expert reports. Besides, that the said mobile even not returned to the complainant and the O.P.No.3 has retained with him till date for the reasons best known to him. It is also a fact not in dispute and discussed above that even after several approached made to the O.P.No.1&2 by the complainant, the O.Ps did not give any heed to his grievance except lip services through email which proves their negligence and deficiency in services. When the complainant purchased a mobile set for his professional use on payment of Rs.8,990/- but found it defective after use of only eight months, the O.Ps are liable to replace the defective mobile set or to refund the amount paid by the complainant towards cost of the mobile.
5. In this case, the complainant due to defect of the said Sony mobile set bearing model No. XPERIA E1 DS purchased another Samsung set as discussed above on payment of Rs.8,100/-. In this connection, we would like to state that it would not be just or proper if we direct the O.Ps to replace the defective mobile rather it would be proper and better if we direct the O.Ps to refund the cost of the said mobile set since the complainant has already purchased another mobile set for his personal use. Hence, there is no denial of facts by the O.Ps that the alleged mobile set was not defective and moreover the O.Ps even did not come to contest their case to prove otherwise. In this view of the matter, the O.Ps are liable to refund the cost of Rs.8,990/- of the said mobile set to the complainant. With regard compensation, in this case, the learned counsel for the complainant has submitted to direct the O.Ps to return Rs.17,090/- towards cost of two mobile sets purchased by the complainant along with Rs.10,000/- with 10% interest per annum towards mental agony suffered, financial loss and cost of litigation. However, we are not inclined to accept the same since in the facts and circumstance of the case, no documentary evidence placed on record to prove the same. The complainant’s claim for Rs.17,090/- appears to be unjust enrichment. We do not find any cogent and convincing documentary evidence to hold the complainant has suffered loss of Rs.17,090/- in total rather he has suffered a loss of Rs.8,990/- only towards cost of one defective mobile set. There is no evidence, material and circumstances on record to award such a huge amount towards loss sustained by the complainant. The award of consumer court is not a jackpot or a lottery hence the contention of the complainant is quite surprising and not sustainable under law. Moreover, the complainant without problem using the second mobile set which is functioning properly with no defects. We would, therefore, like to direct the O.Ps to refund Rs.8,990/- of the cost of mobile set and to pay interest @4% per annum on the cost of the said mobile set. Besides, we are convinced that in this case, the complainant has hired the services of an advocate to file his case in this Forum. We know that in this way the complainant has spent some amount towards filing this case and for payment of advocate fees. We are, therefore, no hesitation to award a sum of Rs.1,000/- towards cost of litigation to be paid by the O.Ps. In the light of aforesaid discussion and taking into account to the facts and circumstance of the case we allowed the case of the complainant against O.P. No. 1 & 2 who are jointly and severally liable to return Rs.8,990/- towards cost of the mobile along with interest @4% per annum from the date of filing this complaint. Similarly, the O.P.No.3 is also directed to return the mobile to the complainant and the complainant is directed to return the said mobile to the O.P.No.1&2 with proper acknowledgement while receiving refund of cost of said mobile set. The case is dismissed against O.P.No.4 since there is no allegation against O.P.No.4 and no relief claimed by the complainant against him in this case. Our finding is also fortified with the decision of Hon’ble National Commission in the case of Sony Ericssion India Ltd. Vs. Ashis Aggarwal reported in IV(2007) CPJ 294 (NC).
6. In the result, we allowed the case of the complainant against O.P.No.1&2 who are jointly and severally liable to return Rs.8,990/- to the complainant towards cost of the mobile set along with interest @ 4% per annum from the date of filing of this complaint i.e. from 25.06.2016 till actual payment is made. The O.P.No.3 is directed to return the said mobile set to the complainant and the complainant is also directed to return the said mobile to the O.P.No.1&2 while receiving refund of cost of the said mobile set. The O.P.No.1 &2 is also directed to pay Rs.1,000/-(Rupees One Thousand) only to the complainant towards cost of litigation. Similarly, the case is dismissed against O.P.No.4 as there is no relief claimed against O.P.No.4 in this case by the complainant. The aforesaid orders shall be complied by the O.Ps within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under the relevant provisions of Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 22nd April 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
