ORDER
V. K. DABAS, MEMBER
In brief the case of the complainant is that he had purchased a Sony Xperia Z from Sai Dua Enterprises on 18.4.2013 vide invoice number A/905 for a sum of Rs. 38500. It is alleged by the complainant that he had purchased this phone as it was stated to be water proof in advertisement of television. It is further alleged that the phone fell down a in a bucket of water on 12-5-2013 and he immediately took the phone out of the bucket but the phone stopped working and there were no lights on the screens display, this alleged that the complainant had contacted the dealer on 18-6-2013 who advised him to contact the service center of the opposite party who kept the said phone to rectify the fault for 3 days. Since OP2 failed to rectify the defect he was sent to OP3 who also flatly refused to either change the phone or get the fault in the phone rectified. It is alleged by the complainant that he kept visiting the OP1 to OP2 and sent many complaints to the Ops for repair/ change of the mobile set but to no avail. Therefore, he has approached this forum for redressal of his grievances.
Ops have contested the complaint and filed its written statement. Para no. E of the preliminary objection and submission is relevant for the disposal of this complaint and is reproduced as under:-
E. It is submitted that the Opposite Party No. 1 had published the advertisements in the newspapers and Television claiming that the phone is 'water and dust resistance' and these claims have been made on the basis of certifications received from international agencies. Further, it has never been stated in any of the advertisement that the said phone is water proof.
Both the parties have filed their evidence by way of affidavits.
We have heard arguments advanced at the bar and have perused the record.
The counsel for the OP has contested that the present case is an admitted case of water ingress inside the mobile handset of the complainant. It is further contended by the counsel for the Op that the terms of warranty more specifically clause 3 of the condition of the warranty states that the warranty shall be void in case of liquid ingress inside the body of the mobile handset. Since the warranty has became void due to the fact that the liquid has ingressed into the mobile phone there is no deficiency in services on the part of the OP and they are not liable to pay any compensation and cost to the complainant.
The counsel for the complainant on the other hand had taken us on the User Guide placed on record by the OP. It is stated by the counsel for the complainant the Annexure B i.e. User Guide filed by the OP is not the user guide of Xperia Z C6603/C6602 but are the general guidelines . The counsel for the complainant has placed on record the copy of userguide of Xperia Z C66, 03/C6602 in support of his contention.
It is further contended by the counsel for the complainant that the complainant had purchased the mobile phone in question only after being influenced by the advertisement that the handset is water resistant. He has placed on record a copy of the advertisement published by the manufacturer in support of his contention. We have perused these documents.
We are in agreement with the contention of the counsel for the complainant. The OP company has itself admitted in its reply that it had published the advertisement in the newspaper and television claiming that the phone is water and dust resistant. At large by these advertisement and the same time seeking to avoid its liability on the basis of warranty clause.
We , therefore, hold OP liable to the complainant for deficiency in service as well as for resorting to an unfair trade practice.
In another case titled Col. Ravinder Pal Brar Vs. Asian Motors, FA 73/06 decided on 28.9.2007 , the Hon’ble State Commission held:-
“ The disputes between the consumer and the service providers and traders should be ended once for all by calling upon the traders and manufacturers to refund the cost of the goods with adequate compensation as the possibility of the new goods also being defective and not being up to the satisfaction of the consumers, cannot be ruled out and in that case parties will be relegated to square one and will suffer another bout of litigation.”
We also direct OP1 and the manufacturer of the handset to withdraw forthwith the advertisement which is deceptive in nature and is in conflict with the warranty clause. We further direct OP1 as under:-
- Pay to the complainant a sum of Rs. 38500/- along with interest @ 10% p.a. from the date of filing of this complaint i.e.9.9.2013 till payment.
- Pay to the complainant a sum of Rs. 15,000 as compensation for pain agony & mental harassment suffered by the complainant
- Pay to the complainant a sum of Rs. 5,000 as cost of litigation.
- The complainant shall return the handset after receiving the above mentioned amount.
The OP1 shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. IF the OP1 fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
