BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^th December 2016

PRESENT

        SMT. C.V. SHOBHA             :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :  HON’BLE MEMBER                                        

COMPLAINT NO.197/2015

        (Admitted on 16.06.2015)

           C. Nagaraju,

D.No-2-9-706/4(1),

1^st floor Bethel Anegundi,

Asharya Road,

Bejai, Mangalore,

Karnataka-575004.

                                                                ……… Complainant

(Advocate for Complainant by Sri. MNA)

VERSUS

                 1. The Manager,

M/s Coretech service,

G-1, Maurishka towers,

Bendoor Mallikatte Road,

Kadri, Mangalore,

                   Karnataka 575002

                2. The Manager,

Panchami Electronics Pvt.Ltd,

Chilimbi, Mangalore,

                     Karnataka 575006

               3.   The Managing Director,

Sony India Private Limited,

A 31 Mohan Co-operative industrial estate,

Mathura Road, New Delhi,

                     Delhi 110044

                4. The Manager,

Sony India private Limited,

#239, Pantrapalya,

Mysore Road, Bangalore,

                    Karnataka 560039

                                                                          …. Opposite Parties

        (Opposite Party No.1,2,4: Ex parte)

        (Advocate for Opposite Party No.3: BMD)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defective handset as against the opposite party claiming certain reliefs.
2. The brief facts of the case are as under:

          The complainant had bought a Sony Xperia Z3 (D6653) vide IMEI No.355098060205031, on 02.10.2014, from Opposite Party No.2 for Rs.48,700/.  After inserting while using the phone discovered that the touch pad of the phone was damaged and not working properly.  The complainant complained about the same to Opposite Party No.3 and was instructed to contact Opposite Party No.1.          The complainant was contacted by the Opposite Party No.3 and was informed that upon investigation to the defect in the handset, the defect had occurred due to external causes due to which the complainant would have to pay Rs.25,995/ for service repair and that Opposite Party No.3 would replace the defective handset with a new one. The complainant tried contacting the Opposite Parties to resolve his grievance but the Opposite Parties have not made any effort to resolve the complainant grievance.  The complainant is highly disappointed with the services being provided to him, after receiving no response or assistance from the Opposite Parties, the complainant sent a letter to the Opposite Parties to state his grievance in detail and to receive a suitable resolution, but to no avail, hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction from this Forum to give direction to the opposite parties to either provide replacement or refund a sum of Rs. 48,700/ to the complainant, and also pay sum of Rs.50,000/- towards the mental agony and cost of the proceedings.

3. Version Notice served to the opposite party by RPAD inspite of serving notice to the opposite parties, Opposite party No.1, 2 and 4 not appeared hence placed expate. opposite party No.3 appeared personally and filed version stating that the Opposite Party No.3 provides warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with the terms and conditions of the warranty provided by it and cannot be held liable for the claims falling outside the scope of the warranty.

furthermore clause 3 of the terms of warranty provided by the Opposite Party No.3 to the complainant clearly states this 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 and 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 of damage resulting from liquid.  The Opposite Party No.3 has also provided Use Guide’ along with the handset, which mentions the precautions one should take while using the phone, and if a person does not comply with the same then answering Opposite Party is not liable for any damage/defect in the product.

Therefore, it is clear that under the terms of warranty the answering Opposite Party is not liable to repair or replace the handset, as the product lies outside the scope of warranty.  It is averred that the defect in the handset has arisen due to external damage.  The complainant here in, after enjoying the handset 5 months approached the authorized service Centre of Opposite Party No.3 on 10.03.2015 with the issue of Touch Pad damaged.  After the thorough inspection of the handset by the service engineer of the authorized service Centre it was found that the touch screen is damaged, which was duly demonstrated to the complainant herein by the service officials of the authorized service Centre.  The complainant was provided with service estimate which the complainant did not approve.  Opposite Parties sent a letter dated 29.10.2014 to the complainant stating therein that the handset is damaged due to external cause and cannot be covered under warranty terms.

4. In support of the complainant One Mr. C.Nagaraju, (CW1) complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document got marked as Ex C1 to C6. One Priyank Chauhan, (RW3) of opposite party filed counter affidavit and answered the interrogatories but document not produced in this case.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that the Sony Xperia Z3 (D6653) from the opposite party found to be defective?
2. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
3. If so, for what relief and from whom the complainant entitled?
4. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i) to (iii): As per Affirmative

Point No. (iv): As per the final order.

REASONS

5. POINTS No. (i) to (iii):  The complainant in order to substantiate the averments made in the complaint filed affidavit supported by documents i.e. Ex C1 to C6.  From the above documents it is revealed that the new hand set purchased by the complainant which is Ex.C1 is that the touch pad of the phone was damaged and not working properly hence the complainant approached the Opposite Party No.3 and was instructed to contact Opposite Party No.1 to handed over the above said handset to Opposite Party No.1 which is shown in the Ex.C2.  After that the Opposite Party demanded Rs. 25,995/ for replacing the new hand set which is shown in the Ex.C3 alleging that warranty does not cover any failure of the  product due to normal wear and tear or due to misuse nor due to accident.  But after perusal   of the records the Opposite Party failed to produce the mobile hand set before the forum to show that the extent of the damage caused to the mobile nor it is caused due to external force.On the other hand the Opposite Party No.3 submitted that the external cause cannot be covered under warranty terms and also pointed out the observation of the Hon’ble National Commission.  It was held that where in complaint of the complainant were duly and properly attended by the Opposite Party and no reliable evidence was produced by the complainant in support of his case therefore never been deficiency in the service provided to the complainant.  But case in our hand is different, in this case the complainant established the case by producing documents same is marked as Ex.C1 to C6 all the documents proves that the Opposite Party committed deficiency in service hence the above observations not at considered in this case. Further we noted that inspite of receiving version notice to the Opposite Party No.1, 2 and 4 neither appeared nor contested the case till this date. From the material evidence placed by the complainant it is proved that hand set is not working and the same has some defect within the warranty period.  Which Shows the Opposite Parties failed to maintain the quality or standard which is required to be maintained.  Therefore the Opposite Parties liable to refund the entire amount instead of replacing the handset because the service rendered by the Opposite Parties not up to the standard hence refund of amount meets the ends of justice in this case. Generally, if the mobile handset has manufacturing defect is to be borne by the manufacturer.  That would not mean that, the dealer is absolved from joint and several liabilities.  As we know, the manufacturer not deals with the customers directly.  Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile handset.  As we know, the contract through dealer/service provider, privity of contract is with them.  To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer.  Therefore, the dealer service center and the manufacturer are jointly and severally liable for the defects found in the mobile hand set in this case. Further we noted in this case Opposite Party No.3 demanded Rs. 25,995/ for service repair from the complainant and also we observed that the complainant paid Rs.48,700/ for new mobile hand set, after inserting the sim the mobile phone touch pad was damaged and not working.  Without using the phone the Opposite Party No.3 demanded further more amount of Rs. 25,995/ is not correct. However, considering the Opposite Party No.4 is the branch office of the Opposite Party No.3 hence liability of the Opposite Party No.4 in this case does not arise since Opposite Party No.3 is already party in the proceedings. Therefore case against Opposite Party No.4 is hereby dismissed. In view of the afore said reasons we hold that the Opposite Party No.1,2,3 are jointly and severally refund of Rs. 48.700/ and also pay Rs.10,000/ (Rupees ten thousand only) as compensation and pay Rs. 5,000/ (Rupees five thousand only) as cost of the  litigation expenses, payment shall be made within 30 days from the date of receipt of this order.

Point. No. iv: In the result, accordingly we pass the following Order:

ORDER

          The complaint is allowed.  The opposite party No.1, 2 and 3 are jointly and severally shall refund of Rs. 48,700/ (Rupees forty eight thousand seven hundred only) and also pay Rs.10,000/ (Rupees ten thousand only) as compensation and pay Rs. 5,000/ (Rupees five thousand only) as cost of the  litigation expenses, payment shall be made within 30 days from the date of receipt of this order.    

          In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.

          Complaint against Opposite Party No.4 is hereby dismissed.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.

(1 to 8 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^th of December 2016)                               

     MEMBER                                                PRESIDENT                        

  (SMT. LAVANYA M.RAI)                            (SMT. C.V.SHOBHA)

D.K. District Consumer Forum                   D.K. District Consumer Forum

           Mangalore.                                         Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW 1: Mr. C.Nagaraju

Documents marked on behalf of the Complainant:

Ex.C1: Tax Invoice.

Ex.C2: Service Job Sheet.

Ex.C3: Sony India Pvt. Ltd, Bangalore Lot No.0160/161 dated.29.10.2014

Ex.C4: Request letter dated. 02.12.2014.

Ex.C5: Defect in Good and deficiency in service, letter dated.29.01.2015.

Ex.C6: Sony India Pvt. Ltd, Bangalore Lot No.0160/161 dated.09.03.2015

Witnesses examined on behalf of the Opposite Parties:

RW1: Priyank Chauhan

Documents marked on behalf of the Opposite Parties:   

Nil

Dated: 31.12.2016.                                               MEMBER