Karnataka

Belgaum

CC/269/2015

Bhingude Sharad - Complainant(s)

Versus

The Manager, Vishnu Service Centre, Ranade Road, Tilakwadi, - Opp.Party(s)

In person

21 Apr 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.269/2015

Date of filing: 26/05/2015

Date of disposal:21/04/2017

 

P R E S E N T :-

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

 

COMPLAINANT        -

Bhingude Sharad, A/p : Teurwadi Tq, Dist. Chandgad, Kohlapur – 416508, Maharashtra.                               (Rep. by Shri.S.Y.Tarale, Adv.)

 

- V/S -

 

OPPOSITE PARTIES  -

1.           2.       3.

The Manager, Vishnu Service Centre, Shop No.G2 & G3, Saraswathi Residency, CTS No.234, Rande Road, Tilakwadi, Belgaum – 590006.   The Manager, Excellent Gallery, 2-DC Road, Ambala Cant, Haryana – 133001.   The Managing Director, Sony (India) Pvt. Ltd., A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi – 110044.                                              (Rep. by Shri.B.J.Gangai, Adv.                                         for Op.No.1 to 3)

JUDGEMENT

 

By  Shri. A.G.Maldar, President.

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) to repair the handset free of cost and under warranty or replace the same and Rs.15,000/- towards compensation for mental agony and Rs.1,000/- cost of the litigation and any other reliefs.  

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant had brought Sony Xperia Z mobile phone on 17.07.2014 of Rs.25,000/, invoice No.3631 and the IMEI No.355000605-789902-2 from OP.No.2, who is the dealer of mobile phones and OP.No.3 is the manufacture and OP.No.1 is the authorized service center.

 

          Further the complainant contended that, after purchasing the said mobile handset which was a water proof mobile handset and further the said handset is widely advertised as a water resistant and further the complainant’s mobile accidentally fell in the sea and got damaged and immediately the complainant has approached the OP.No.2 to get it’s replacement and Op.No.2 getting the mobile handset and repaired, but the Op.No.2 has informed that, his phone’s repair could not be covered under warranty and the complainant was required to pay 80 % of the total cost of the mobile phone i.e. Rs.21,000/-, if he wished to get it replaced and further the said defective damaged mobile hand set is still lying with the OP.No.2 since from 06.02.2015 and further the complainant has wrote a letter dtd: 13.03.2015 that, the said mobile handset problem will be solved immediately and the said letter was served to the Ops, but Ops postponing the repair and delivery of the handset, it amounts to deficiency of service on the part of the OPs. Hence, ultimately the complainant has constrained to file this complaint.

 

3.      After receipt of said notice, the Op.No.1 to 3  have appeared through their counsel and resisted the claim of the complainant by filing their written version and denied all allegations made out in the complaint and contended that, as per the terms of warranty, the answering Ops are not liable to repair or replace the handset, as the product lies outside the scope of warranty and further the said defective mobile handset has arisen due to liquid ingression and further contended that, the Ops are liable to provide free of cost repair on its products in case when the product is proved to be defective due to improper material, workmanship, any manufacturing defect or any other problem that has arisen in the product from the manufacturers side and not when the defect has arisen due to an external cause which is beyond the control of the Ops.

          The Ops further contended that, the complainant has approached the Op.No.1 on dtd: 06.08.2014 with the issue of “hanging & Software Problem”  and Op.No.1 inspection the handset, no trouble was found in the handset and further the handset required software update which was duly done by the OP.No.1 on free of cost basis and further the complainant again on dtd: 28.10.2014 approached the Op.No.1 with the same issue and the handset had no problem at all and handset only required software update which was duly done by the OP.No.1 and thereafter the handset was collected by the complainant after satisfying himself with the working condition of the handset.

 

          It is Ops further contended that, the complainant after using the handset for around 7 months and approached the OP.NO.1 on dtd: 06.02.2015 with the issue of “No Power” and OP.No.1 detailed inspection the handset, it was found that, there was a liquid found in the mobile. The Op.No.1 has further contended that, as per the warranty rules, the mobile will be repaired with some charges of parts and services, then, the complainant started threatening to Op.No.1 to give him a new mobile for free or otherwise complainant will take legal action and further the Ops just to avoid any dispute with the complainant, offered fresh handset @ 20% price to which the complainant refused and this offer of discount was made only in order to maintain customer satisfaction and were not admission of any liability on the part of the Ops and the complainant intention is to get gain or replace of the handset which is contradict to terms and conditions of warranty. The question of deficiency of service on the part of the OPs does not arise. Hence, the Ops have prayed for dismissal of the complaint.

 

 

7.      Complainant has filed his affidavit in support of his case and produced 02 documents i.e. Bill receipt dtd: 17.07.2014 and Service Job Sheet dtd: 28.10.2014 which are marked as Ex.P-1 and Ex.P-2, as against this the OP.No.3 has filed his affidavit in support of his case and he has not produced any documents as mentioned in written version. The Adv. for complainant has argued in detail and Ops argument taken as heard.       

 

Now, on the basis of these facts, the following points that would arise for our consideration:

01. Whether the complainant has proved that, there is negligent and deficiency of service on the part of Ops for not repaired the Mobile handset or refund the cost?

 

02.What order?

 

5.      Answer to the above Points:-

 

01. Partly Affirmative.

 

02. As per final Order.

 

R E A S O N S:-

 

6.      Point No.1: After perusing the evidence of both parties and scanning the written arguments, it is evident and admitted fact that, the complainant has purchased the Sony Xperia Z Mobile Phone on dtd: 17.04.2014  for Rs.25,000/- invoice No.3631 and IMEI No.355000605-789902-2 regarding this the complainant has produced tax invoice No.3631 which is marked as Ex.P-1, which is not in dispute. It is also not in dispute that, the complainant is a consumer as is defined under the provisions of the C.P. Act 1986.

 

          The case of the complainant that,  the complainant seen the said advertisement in paper, the complainant had purchased the mobile handset i.e. Sony Xperia Z. On the date of purchase itself, the said mobile handset found defective and create problem a number of times, the complainant has approached the Op.No.1 for the same and rectified the problem by the OP.No.1. Accidentally, the said mobile fell in the sea and got damaged and immediately the complainant has approached the OP.No.2 to get repair or  replacement and Op.No.2 getting the mobile handset, but the Op.No.2 has informed that, this phone could not be covered under warranty and the complainant was required to pay 80 % of the total cost i.e. Rs.21,000/- and said mobile handset is still lying with the OP.No.2 since from 06.02.2015 which is marked as
Ex.P-2 and requested to rectified the defect and return the mobile handset or replace the handset, in order to prove the said contention, the complainant has filed affidavit alongwith supporting document i.e. Job card, which is already marked as Ex.P-2. It is evident that, the complainant has given handset for repairs, but, the Ops did not rectified the defect and did not return the handset to the complainant. Hence, in our consider view that, the complainant established his case as alleged in the complaint as well as affidavit evidence by producing material document i.e. Mobile purchase receipt and job card.

 

            The case of the Ops that, the said handset is not covered under the warranty as per the terms of warranty, there is no any condition to replace the handset which is not covered under the warranty as per the terms of warranty as the product lies outside the scope of warranty and the said handset has got power problem due to liquid ingression and after going through these contentions of the written version and evidence of OP which is not acceptable and it has no evidentiary value  and now the Ops without any base or fault of the complaint raised untenable grounds  before this Forum, which is against the principle of law. For the sake of argument point of view, when the product itself is water resistant, then the question does not arise to ingress water/liquid in the hand set as given report by the OP which is marked as Ex.P-2, it is also contradict to his warranty and  advertisement.  It means that, whether water resistant of mobile set is free from water or else any other, in this regard the Ops have given warranty and  advertisement, but as per warranty and  advertisement they have failed to maintain the set as alleged standard as per company’s advertisement the product is not to that standard quality. 

 

           Further the Ops contended that, as per the terms and conditions of the warranty mentioned on its product and it cannot be held liable for claims falling outside the scopes of the warranty, for that proposition except OPs averments, there is no any material documents to show that, the problem in mobile set is caused due to miss-handling or any damage caused by the complainant. The complainant has given complaint regarding the said problems earlier and OPs have already checked  and returned back the mobile set, whether it is correctly rectified and removed the defects in the mobile set or not ? In our considered view that, initially the mobile set itself is having manufacturing defect, which has been not repaired properly by the OP’s service engineer, hence it has been brought by the complainant for repair on second time within few months, it shows that in our considered firm opinion that, the mobile handset itself is in defective condition towards functioning, thereby the act of the Ops amounts to deficiency in service.  The contention of the Ops that, the said handset has been mishandling by the complainant is not proved and not acceptable, for the reason that, the complainant being a well-educated and has handled the mobile set with proper care and cautious.    Hence the Ops have failed to prove that, the said mobile handset was
mis-handled and  mis-used by the complainant.  

 

           Therefore after careful scanning and going through the complaint, written version, evidence and documents of both sides we are of the considered opinion that, the complainant has proved that, there is manufacturing defect in the mobile handset and demanding service charge itself, is amounts to deficiency in service on the part of the Ops and if we direct the Ops to rectified the handset, if reparable or replace the said defective mobile set it will meets ends of justice.  Accordingly we answer this point in the affirmative.

         

            Therefore, in our consider view that, the attitude of the Ops  shows that, the Ops have not rectified the problem which is caused to the mobile handset. Under such circumstances, the said acts of the Ops are negligent and deficiency in service on the part of the Ops as not rectifying the handset and unnecessary demanding money, though the handset is under still warranty period i.e. within one year from the date of purchase.  However, the duty of the Ops to repair the handset as per terms and conditions of the warranty. Therefore, the attitude of the Ops shows that, there is a negligent acts in respect of services and demanding services charges under warranty period.

 

It is bounded duty of the Ops, when the handset get defective within warranty period irrespective of internal or external cause and further it is the duty of the Ops that, if the said handset is not repairable it can be replace by taking old handset.

 

Moreover, the complainant has proved his case towards handset given for repairs, it revels in the Job sheet issued by the OPs, since from beginning when the complainant given handset for repair purpose, the Op.No.2 did not return the said hand set which is prima-facia shows that, the Ops sold handset was in defective in respect of not working properly since from beginning itself.  Therefore in our considered opinion that, there is deficiency in service on the part of the Ops in supplying defective handset, due to which the complainant suffered lot of mental agony and hardship. Looking to the facts and circumstances of the case, it would be proper, directed to repair/rectified the problem of the mobile handset without any cost or if the said mobile is not repairable, replace it with the new mobile of same version if required and further we directed to Ops are jointly and severally to pay the compensation of Rs.2,000/- towards mental agony and  litigation expenses. Hence, we answer to the above point No 1 in affirmative.  Accordingly, we proceed to pass the following;

 

O R D E R

 

   For the reasons discussed above, the complaint filed by the complainant U/s.12 of the Consumer Protection Act 1986 is partly allowed.

 

The OPs jointly and severally are directed to repair/rectified the problem of the mobile handset of the complainant or if the said mobile handset is not repairable/rectified, replace with the new mobile handset of same version.

 

The OPs jointly and severally are directed to pay Rs.2,000/-towards mental agony and  costs of the proceedings.

 

The OPs jointly and severally granted 10 weeks to comply this order, falling which the complainant shall entitle to get interest @ 6% p.a. on cost of the mobile from the date of complaint till realization.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

            (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this 21^st day of April, 2017).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.