Haryana

Jind

78/14

Dr. Mukul Garg - Complainant(s)

Versus

Sony India - Opp.Party(s)

Sh. Vinod Bansal

02 Jun 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND. 
                                           Complaint No. 78 of 2014
   Date of Institution: 11.7.2014
   Date of final order: 2.6.2016 

Dr. Mukul Garg c/o Maharaja aggarsain Hospital Scheme No.5 Gandhi Nagar, Jind. 

                                                             ….Complainant.
                                       Versus
Sony India Private Limited, A-3, Mohan Co-operative Industrial Estate, Mathra road, New Delhi-110 044 (India).
Hare Krishana Vasu Mobile Shop, Shop No.19 Gohana road, Jind through its Proprietor/Authorized signatory.
J.P. Electronics, Aggarwal E-Mall, Rohini Sector-7, Delhi, authorized service centre of Sony India. 
                                                          …..Opposite parties.
                          Complaint under section 12 of
              Consumer Protection Act, 1986.

Before: Sh. Dina Nath Arora, President.
    Smt. Bimla Sheokand, Member.
            Sh. Mahinder Kumar Khurana, Member.    

Present:  Sh. Vinod Bansal Adv. for complainant.
          Sh. Pawanjit Saini Adv. for opposite party No.1.
          Opposite parties No.2 and 3 already ex-parte. 
         
ORDER:

             The brief facts in the complaint are that complainant  along with his brother-in-law namely Deepak had purchased a Sony XPERIA ZR Model No.C5502 for a sum of Rs.29,900/- vide invoice No.5381 dated 2.7.2013 from opposite party No.2. The payment  of the above  said mobile was made by Deepak who is brother-in-law of the 
            Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                        …2…
complainant. As per warranty card the mobile had one year manufacturing warranty from the date of its purchase. At the time of purchase it was also assured by the opposite party No.2 that their company is very reputed international company and their products are of world class and also assured to provide best services. The above said mobile of the complainant got wet in rainy water while it was lying in the pocket of pant. The complainant got stunned that the mobile is not working at all and has become dead. The complainant visited the opposite party No.3 for removing the defects of the mobile set but the defects was not removed by the opposite party No.3.  Deficiency in service on the part of the opposite parties is alleged. It is prayed that the complaint be accepted and opposite parties be directed to  refund the price of mobile i.e. Rs.29,900/-, a sum of Rs.50,000/- as compensation on account of mental pain and agony  as well as to pay a sum of Rs.11,000/- as litigation charges to the complainant. 
2.    Upon notice, the opposite party No.1 has appeared  and filed the written statement stating in the preliminary objections i.e. Dr. Mukul Garg complainant  is not the consumer as complainant himself admitting in the complaint that his brother-in-law has gifted the mobile in question to the complainant. On merits, it is contended    that the mobile of the complainant was checked by opposite party No.3 and found that the mobile/handset  was effected  by  liquid. Liquid ingress is possible in set while ports were open not closed tightly since the defect in the set was due to external factor and not in hand to 
        Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                    …3…
the set under such circumstances warranty stand void. The repair of the mobile set will be on the chargeable basis under such circumstances repair may be unreliable and uneconomical and other part might also have been effected which we cannot deduct now there is no warranty after repair. The answering opposite party further alleged that if the water or liquid gets on the micro USB port, the micro SD card, the micro SIM card and the handset connector, wipe it off with a dry cloth. The water resistance of the micor USB port, the micro SD card, the micro SIM card and the handset connector is not guaranteed in all environments or conditions. The warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal customary manner, in accordance with the instructions for use and maintenance of the product. Nor does this warranty cover any failure of the product due to accident, modification or adjustment, acts of God or damage resulting from liquid. Therefore, there is no deficiency in service on the part of the answering opposite party. Dismissal of complaint with costs is prayed for. 
3.    Opposite parties No. 2 and 3 were proceeded against ex-parte vide order of this Forum dated 21.8.2014 and 29.9.2014 respectively. 
4.    In  evidence, the complainant has produced his own affidavit Ex. C-1,  copy of  cash memo Ex.C-2, affidavit of Deepak Ex. C-3, copies of letter Ex. C-4 to Ex. C-14, photograph of mobile set Ex. C-15 and copy of document Ex. C-16 and closed the evidence.  On the other hand, the opposite party No.1  has produced the  affidavit of  Sh. 
        Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                    …4…
Priyank Chauhan Ex. OP-1, copy of order dated 23.7.2013 Ex. OP-2, copy of resolution Ex. OP-3 and copies of important information  Ex. OP-4 and Ex. OP-5 and closed the evidence. 
5.    We have heard the arguments of Ld. counsels of both the parties and also perused the record placed on file. The first objection of opposite party No.1 has vehemently argued that complainant is not a consumer, Deepak Kumar is the consumer who has purchased the handset from opposite party No.2 vide invoice No.5381 dated 2.7.2013. On the other hand, Ld. counsel for complainant argued that he admitted that Deepak who is brother-in-law of complainant has gifted the handset to the complainant and complainant is user of the same with approval of Deepak for personal use for the date of purchase of itself. Counsel for complainant further argued that as per section 2 (d) (1)  of the Consumer Protection Act, consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system or differed payment, and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for release or for any other commercial purpose. Counsel for the complainant also relied upon the Ex. C-3 affidavit of Deepak Kumar who has gifted the mobile set to the complainant being a brother-in-law. In view of the above definition of Section 2 (1) (d) of the 
        Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                    …5…
Consumer Protection Act, complainant being the user of the mobile and comes under the definition of consumer. Other ground has been taken by the opposite party No.1 that on inspection of the product it was observed that handset was effected by liquid and liquid ingress is possible set while ports are open or not tight so warranty stands void and complainant is not entitled any relief. On the other hand counsel for complainant  as per Ex. C-15 that the company has given the warranty of the mobile as  per advertisement as shown in the photographs of mobile cover Xperia TM Z2 the worlds best camra and camc order in a water proof  smart phone.  In this case complainant admitted that the mobile in question got wet in the rainy water while it was lying in the pocket of the pent of the complainant. He further alleged that at that time the mobile was covered in a phone case with all its apertures/orifices closed as firmly and ports were closed tightly. But due to rainy water the mobile in question became dead. The complainant sent the e-mail to the opposite parties which reads as under:-
           “your website/advertisements/brochures mentioned that the phone is water-proof. So, I wish to know that if it has been rendered damaged by water, then why is it not covered under the one-year warranty? Your staff at the service centre keeps enlisting policies to find loopholes in my claim, but all I wish to say is if I bought this phone because it was said to be water-proof, then I deserve a claim of replacement if it was damaged by water and is still under the warranty period”. 
        Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                    …6…
6.    On the other hand, the opposite parties have inspected the product which was given in the service centre by the complainant on 13.3.2014 On the request of the complainant, the company has given the offer  to exchange the current faulty handset at 80% cost of new model maximum retail price of 20% discount on MRP and new product comes with normal full one year warranty. Any free accessories or product is given with the chosen model at our retail outlets, are excluded from this offer. The service centre has given 50% discount offer of MRP rate. 
7.    In view of the above discussion we are of the view that the company is misleading the complainant/consumers by advertising in their pamphlet alleging that the mobile in question is water proof whereas when the consumer contact with the company then the company raises several objections to save their skin. Such type of misleading advertisements are not permissible under the law and  for this the company cheated the consumers.  In the present case, the complainant has used his mobile hand set about 8 months and in the interest of justice, we direct the complainant to pay the 50% price of the mobile on the MRP rate. After depositing 50% amount of the complainant then the opposite party No.1 and 3 will replace the old mobile set with new one having  same model to the complainant. The complaint of the complainant is disposed off accordingly. Copies of order be supplied to the parties under the rule. File be consigned to the record-room.
Announced on: 2.6.2016

                                President,
 Member                 Member               District Consumer Disputes                                     Redressal Forum, Jind

              Dr. Mukul Garg Vs. Sony India Pvt. Ltd. etc.
                        
                        
Present:  Sh. Vinod Bansal Adv. for complainant.
          Sh. Pawanjit Saini Adv. for opposite party No.1.
          Opposite parties No.2 and 3 already ex-parte. 

              Arguments heard. To come up on 2.6.2016 for orders. 
                                    President,
        Member         Member              DCDRF, Jind
                                  25.5.2016

Present:  Sh. Vinod Bansal Adv. for complainant.
          Sh. Pawanjit Saini Adv. for opposite party No.1.
          Opposite parties No.2 and 3 already ex-parte. 
         

         Order announced. Vide our separate order of even date, the complaint is disposed off. File be consigned to record room after due compliance.  
                                          President,
        Member         Member              DCDRF, Jind
                                  2.6.2016