THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C. 85/20014

Dated this the 12^th day of November 2018.

                     (Smt. Rose Jose, B.Sc, LLB.    Hon’ble      :  President)            

                          Sri. Joseph Mathew, MA, LLB              : Member

ORDER

Present: Smt.Rose Jose, Hon’ble President:

            This petition is filed by the petitioner Under Section 12 of the Consumer Protection Act for an order directing the opposite parties either to replace the defective mobile phone sold to him or to refund its purchase price along with compensation for the inconveniences and mental agony suffered due to the defects of the phone.

            Petitioner’s case is that, he had purchased a Sony Xperia mobile phone model No.C6602 from the 1^st opposite party shop, manufactured by the 2^nd opposite party on 08.05.2013 for Rs.38000/-.  The mobile is having one year warranty also.  It is stated that, during the 1^st week of December 2013, the mobile showed display problem and ceased functioning.  Immediately he took the phone to the 1^st opposite party and they told him to contact the service Centre mentioned in the purchase bill.  As such he approached the said service Centre but they refused to accept the set and directed him to approach another service Centre Viz  Madona Systems & Services at Chalapuram, Kozhikode.  But they are also not ready to receive the phone or to repair the same.  The said act of the opposite parties amounts to unfair trade practice, gross negligence and also deficiency in service on the part of the opposite parties.  Due to the said act of the opposite parties he had suffered much inconveniences, mental agony and huge financial loss also.  Hence the petition seeking reliefs.

            The opposite parties filed a joint version denying the allegations of the petitioner as not true or correct.  It is contended that, this petition is vexatious, baseless, and an abuse of the process of Law.  It is filed only to injure the interest and reputation of them.  They admitted the purchase of the said phone by the petitioner as stated in the petition but contended that,  the petitioner had approached the authorized service Centre of the 2^nd opposite party for the first time in December 2013 ie. after using the phone for more than 7 months, with complaint that, there was no displays in the handset.  On inspection by their service engineer, it was found that the set was damaged by liquid.  Therefore he was informed that, the set could not be repaired free of cost as per the warranty terms and the repair can be carried out on chargeable basis.  A repair estimate was also provided to the petitioner for his approval but he refused to get the handset repaired on a chargeable basis and left the service center without getting the set repaired.

            It is also submitted that, the terms of the warranty are not applicable in cases where the damage has been occurred due to external causes like ingress of liquid etc.  The terms of the warranty is binding both the parties and so they cannot be held liable for the damages caused due to external forces which are beyond the scope of the warranty provided by the Company.  They have even sent a letter to the petitioner dtd.16.10.2014 stating these facts also.  It is further stated that, they are always willing to honour the warranty terms, but in this case the petitioner is seeking to make wrongful gains. Things being so, there is no unfair trade practice or any deficiency in service on their side as alleged and so they are not liable to replace the handset or to refund its price or to pay any compensation to the petitioner as prayed for. The petitioner is not entitled for any of the reliefs sought for in the petition also.  Hence prayed to dismiss the petition on accepting their version.

            Evidence consists of the affidavit filed by the petitioner, and ext.A1, the purchase bill of the said mobile phone dtd.08.05.2013.

            According to the petitioner the mobile phone purchased from the 1^st opposite party manufactured by the 2^nd opposite party was defective.  It started display problem within 7 months of its purchase but the opposite parties are not ready to repair the phone at free of cost even though the defect started within the warranty period.  This is deficiency in service and unfair trade practice on the part of the opposite parties and so they are liable either to replace the defective handset or to refund its price along with compensation for his sufferings.

            The specific case of the opposite parties is that, the defect was due to liquid entry and so as per the warranty terms the repair can be carried out on chargeable basis only.  They provided a repair estimate to the petitioner for his approval but he was not ready to get the set repaired on chargeable basis.  Since the terms and conditions in the warranty is binding to both parties, no deficiency in service can be attributed on them.  They are still ready to honour the warranty terms.  They cited the decision of the Hon’ble Supreme court in Bharathi knitting Co Vs.DHC world wide express courier Division of Air freight Ltd, AIR 1996(SC)2508 wherein it is held that “the terms of warranty were binding on the parties and that the liability undertaken in contract between parties should be limited to extent undertaken.”

            Since the reason stated by the opposite parties for not repairing the handset at free of cost even within the warranty period is damage by liquid which is outside the scope of the warranty, the ‘Burden of proof’ is on the petitioner to prove otherwise.  An expert report is highly essential in such cases.  The petitioner ought to have taken steps to get the handset inspected by an expert in this field. If the expert is reporting that the damage was not because of any external causes or by liquid as alleged by the opposite parties, then the Fora can direct the opposite parties to repair the handset free of cost and if repair is not possible, can order to replace the set or to refund its purchase price with compensation for the deficiency in service on their side. In M/s.Sony India Pvt Ltd Vs K.Sanish & others 2015(3) CPR 509(N.C) the Hon.ble National Commission held “Onus was on Complainant to prove that Camera purchased by him suffered from manufacturing defect the Onus was having not been discharged, he failed to prove any manufacturing defect.”  Here in this petition also the petitioner has not proven any manufacturing defects through an expert report.   In the absence of evidence to see that the defect was not due to any external force or due to liquid entry, we have no other choice but to dismiss the petition.

            In the result, the petition is dismissed.  Parties will bear their cost.

Dated this 12^th day of November 2018.

Date of filing: 18.02.2014.

SD/-MEMBER                                   SD/-PRESIDENT                            SD/-MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. The purchase bill of the mobile phone dtd.08.05.13.

Documents exhibited for the opposite party:

Nil

Witness examined for the complainant:

Nil

Witness examined for the opposite party:

None.

                                                                                                                                                              Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT