Andhra Pradesh

East Godwari-II at Rajahmundry

CC/22/2016

Dr. Deergasi Satish Kumar - Complainant(s)

Versus

The Proprietor, Big C Mobile Pvt., Ltd - Opp.Party(s)

Kadali Ravindranath

06 Dec 2016

ORDER

                                                                                                                                                     Date of filing:   18.03.2016

                                                                                                                                                     Date of Order: 06.12.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAMAHENDRAVARAM

 

                                                PRESENT:  Smt. D. Leelavathi, B.Sc., B.L.               PRESIDENT

                               Smt H.V. Ramana, B.Com., L.L.M.,          MEMBER

              

                 Tuesday, the 6^th day of December, 2016

 

 

C.C.No.22 /2016

Between:-

 

Dr. Deergasi Satish Kumar, S/o. Bhimarao, Hindu,

Aged 38 years, Scientist, R/o. Door No.78-15-18/1,

Dr’s Street, Syamala Nagar, Rajamahendravaram,

E.G. Dist.                                                                                                                                                  …  Complainant

 

                                    And

 

1)  The Proprietor, Big C Mobiles Pvt. Ltd.,

      R/o. Door No.30-1-23/2, J.P. Road,

      Near A.E.L.C. Church, Rajamahendravaram,

      E.G. District.

 

2)  Durga Electronics, Door No.36-24-30, Factory Street,

      V.T. College Road, Innespeta, Rajamahendravaram.

 

3)  Sony India Pvt. Ltd., A-31, Mohan Co-operative

      Industrial Estate, Mathura Road, New Delhi-110044,

      India.                                                                                                                                               …  Opposite parties

 

            This case coming on 29.11.2016 for final hearing before this Forum in the presence of Sri Kadali Ravindranath, Advocate for the complainant and 1^st opposite party, who appeared in person and the 2^nd & 3^rd opposite parties having been set ex-parte, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Smt. D. Leelavathi, President] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay Rs.2,00,000/- for deficiency in service; pay Rs.1,00,000/- towards mental agony caused to the complainant; pay Rs.50,000/- for the loss of usage of phone apart from paying back Rs.18,990/- with interest at 24% p.a. the price of the phone from the date of purchase till realization and award costs of the complaint.

2.         The case of the complainant is that he purchased Sony Mobile Xperia C3, Model       D 2502 with IMEI No.356872068439159 on 22.5.2015 from the 1^st opposite party. The complainant experienced that the said mobile phone was not properly working i.e. Audio problem, MP5. The complainant approached the 1^st opposite party showroom for mobile complaint. The 1^st opposite party directed the complainant to go to the service center i.e. 2^nd opposite party at Rajamahendravaram. On 30.7.2015, the complainant approached the 2^nd opposite party and gave a complaint. On that date, they have taken the said mobile from the complainant. After that the mobile was returned on 5.8.2015 to the complainant with board replaced and SW upgraded with IMEI No.351710050061703. But, even after the repair of the said mobile, the same problem arised within short time. Again the complainant approached the 2^nd opposite party and gave a complaint on 12.8.2015 and hand over the mobile for repair and the same was returned to the complainant on 19.8.2015. Though the said mobile underwent so many repairs, the problems were not rectified and the mobile did not work properly. The complainant sent emails to the 3^rd opposite party to change the mobile set with new one, but till date the complainant’s mobile was not replaced with new one. The complainant got issued legal notice dt.24.2.2016 to the opposite parties to replace the said mobile with new one. The complainant is no longer interested even to have the mobile phone replaced by the Sony Company. Hence, the complaint.

3.         The 1^st opposite party filed its written version and denied the allegations made by the complainant. This opposite party submits that at the time of purchase itself the complainant was given full particulars of the warranty issued by the manufacturer Sony mobiles IMEI No.356872068439159 amount to Rs.18,990/- on 22.5.2015 including authorized service center details. After accepting the Sony warranty terms and conditions only the above said mobile was purchased by the complainant without any demur. As per the complaint of the complainant after purchasing the mobile on 30.7.2015 it started giving problems like audio problem and MP5 etc. Immediately he was directed to the 2^nd opposite party through this opposite party. Immediately on 5.8.2015 the complainant mobile board replaced and software upgraded and given back to the complainant. But the complainant failed to file the job sheet in this regard along with this complaint is crucial document. Even after that also again the complainant mobile given problem on 12.8.2015 regarding Walkman etc. and the same was returned to him after due rectification etc. Even during this second time also complainant failed to file the job sheet given by the authorized service center for the reasons known to this complainant and the authorized service center. In the complaint filed by the complainant he informed that he sent so many mails through his colleague to the Sony Company on 19.1.2016 but failed to file all those email correspondence along with the complaint which is crucial to know about the exact process and the assurance if any given by the Sony India Pvt. Ltd. etc. The complainant also informed that he will be contacted very shortly etc. but failed to file the same information which is having high importance with regard to present set of issues in this complaint. This opposite party No.1 itself again and again informed the complainant to visit the service center for necessary help even at this point of time. But the complainant intentionally not informing all the actual issues and incidents to this Forum only for grabbing the new mobile and compensation from the opposite party No.1. There is no negligence on this opposite party at any point of time as this opposite party No.1 guided the complainant right from the purchase of the mobile. The coverage of the warranty for the particular defect or replacement of the mobile in case of certain damage etc. within certain period is the subject matter of the warranty and as per the agreed conditions and only. This opposite party will sell the mobiles of the various companies in working conditions only and will not sell defective mobiles under any circumstances. This opposite party is nothing to do with all those issues nor having any right to interfere as they are only mere sellers of the mobile phones for a very less margin. Even the complainant failed to submit the job sheet copies when he submitted his mobile in authorized service centre. It is submitted that the alleged defects for complainant’s mobile if any can only be determined with proper analysis from an expert, to find out whether the mobile phone has a manufacturing defect or the said defect was otherwise caused due to a physical damage or for any other reason. Hence, there is no deficiency of service on the part of this 1^st opposite party and the complaint is liable to be dismissed with exemplary costs.

4.         The proof affidavit filed by the complainant and Exs.A1 to A4 have been marked for the complainant. The proof affidavit filed by the 1^st opposite party and there is no documentary evidence adduced by the 1^st opposite party.

5.         Complainant and the 1^st opposite party is called absent and no representation on their behalf. Hence, posted for orders.

6.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite parties?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

7.  POINT Nos.1 & 2:  The complainant has purchased mobile phone manufactured by Sony India Private Limited having IMEI No.356872068439159,  Model Xperia C3 D 2502 for Rs.18,990/- on 22.05.2015 vide Ex.A4 invoice from the 1^st opposite party, which is admitted by the 1^st opposite party.

            It is stated in the affidavit of the complainant that after purchasing the mobile, on 30.07.2015 it started giving problem like audio problem and MP5 etc. Then, he approached the 1^st opposite party and informed about the defective functioning of the mobile phone. Then the 1^st opposite party directed him to the 2^nd opposite party for repairing of the said mobile. Then they took his mobile phone and replaced the board and software upgraded and given back to him on 05.08.2015.  But, the problem could not be rectified. Again, he approached the 2^nd opposite party and informed about the defects in the said mobile. Then, they stated that walkman is not working and contacts are not responding and touch etc. Then, he hand over the mobile to the 2^nd opposite party for repair and the same was returned to him on 19.08.2015. But, the defect was not rectified. Then, he sent email through his colleague      Sri Ravi Kumar Peddini to the 3^rd opposite party informing the defective functioning of the mobile and also requested to replace the mobile. Then, they stated him that he would be contacted shortly from the main service center. But nobody contacted him and his mobile was not replaced till today.

            With these kind of defects, the complainant got issued a legal notice dated 24.02.2016 to the opposite parties 1 to 3. The opposite parties 1 to 3 received the notice, but they did not choose to send any reply.

            The complainant prayed in this complaint is that to pay an amount of Rs.2,00,000/- for the deficiency of service, Rs.1,00,000/- towards mental agony caused to the complainant and Rs.50,000/- for loss of usage of phone and to pay an amount of Rs.18,990/- which is the cost of the mobile with interest at 24% p.a. from the date of filing the complaint till the date of realization and costs of the complaint.

            The opposite parties 2 & 3 remained ex-parte. They did not contest the matter.

            The 1^st opposite party filed its written version and also proof affidavit and contended that generally mobile phones will be sold in packed condition which were packed by the manufacturer only. Its company role is to sell the mobile phones in the same packed conditions. Therefore, it does not concern with manufacturer of the mobile phones. It is the duty of the manufacturer to rectify the manufacturing defects, who provides the warranty for their products for any defects in the production of the mobile phones. For this purpose, the manufacturer authorizes the authorized service center to carry out certain repairs, if any, defects arises before one year from the date of purchase of mobile phone. It is further contended that it is only a dealer and it is involved in the business of sale of various brands of mobile phones. Therefore, it is not concerned with its manufacturing units and the warranty provided by the manufacturer. It is further contended that the complainant with all bad allegations and just to gain easy amounts from it, came up with a story informing that the damage was happened as it was a manufacturing defect etc. and filed the present complaint, but in fact there is no deficiency of service and hence, the payment of compensation if any by it does not arise.

            After perusing the material on record and affidavit of the complainant, it is observed that the complainant has purchased mobile phone from the 1^st opposite party vide Ex.A4 invoice. After purchasing the mobile, on 30.07.2015, it started giving problem like audio problem and MP5 etc. Then, the complainant approached the 1^st opposite party and informed about the defective functioning of the mobile. Then, the 1^st opposite party directed the complainant to approach the 2^nd opposite party i.e. Durga Electronics for repairing the mobile. On 30.07.2015, the complainant approached the 2^nd opposite party for repairing of the said mobile. The 2^nd opposite party took the mobile phone and replaced the board and software upgraded and given back to the complainant on 05.08.2015, but the problem could not be rectified. Again, he approached the 2^nd opposite party and informed about the defective functioning of the mobile phone even after effecting the repairs on 30.07.2015. Then, they stated that walkman is not working, sometimes contacts are not responding and touch also, Bluetooth is not recognized other devices. The complainant filed the service job sheet issued by the 2^nd opposite party which has been marked as Ex.A4 along with invoice. It is stated in the written version as well as in the affidavit of the 1^st opposite party that the complainant failed to file the job sheet along with the complaint which is crucial document, which nobody can understand about the problem including this Hon’ble Forum. But, the above contention cannot be considered as the complainant filed the job sheet issued by the 2^nd opposite party and got it marked as Ex.A4.  The parties are having right to file documents which are not filed along with the complaint during the course of evidence. Simply because the job sheet was not filed along with the complaint, the version of the 1^st opposite party cannot be accepted.

            After going through the evidence of the complainant carefully discloses that the complainant categorically stated that there is a defect in the mobile phone and inspite of repairing the same twice by the 2^nd opposite party, the defect could not be rectified. The complainant has given the legal notice vide Ex.A1 and the same was received by the opposite parties vide Exs.A2 and A3, but they failed to answer the said notice.

            In view of the above discussion and basing on the material available on record, the opposite parties i.e. 1 and 3 failed to rectify the defect in the mobile phone. The complaint is filed within the warranty period and the defects could not be rectified by the opposite parties 1 and 3, which amounts to deficiency in service. It is further observed that there was inherent manufacturing defect in the mobile phone.

            As already stated above, the 3^rd opposite party remained ex-parte. It has not filed any petition for setting aside the ex-parte order. As the 2^nd opposite party being a service center has no responsibility to answer the claim of the complainant. Therefore, the claim against the 2^nd opposite party is liable to be dismissed.

            Now, it is to be seen whether the 1^st opposite party is liable for claim of the complainant along with the manufacturer of the mobile phone i.e. 3^rd opposite party.

            It is contended by the 1^st opposite party that it is a retailer and involved in the business and sale of various brands of mobile phones and therefore, it is not concerned with its manufacturing units and it is nothing to do with all these issues nor having any right to interfere as it is only mere seller of the mobile phones.

            It is an admitted fact that the complainant has purchased the mobile phone from the 1^st opposite party. Therefore, seller of the product is duty bound in law to provide proper service to sold product, if any, defect in the product itself cropped up.

            In the instant case, the 1^st opposite party could not provide proper service to the sold product i.e. mobile phone of the complainant. Therefore, both seller i.e. 1^st opposite party and manufacturer i.e. 3^rd opposite party are liable for replacement or refund of price of the mobile phone. The complainant specifically asked for refund of the price of the cell phone, but not for replacement of the cell phone. Perhaps, he might be thought that the defect could not be rectified even if it is repaired by the authorized agency.

            In these circumstances, we are of the opinion that it is just and proper to order for reimbursement of the cost of the mobile phone.

            On the other hand, we are of the considered view that the complainant has suffered lot of inconvenience and misery due to improper functioning of the mobile phone two months after purchase. No purchaser of a new mobile phone would ever think that he would be going to service center to get the mobile phone repaired so often. If this has happened, the purchaser is definitely liable to receive some compensation for inconvenience and mental agony faced by him due to defective functioning of the mobile phone.               

 

8.   POINT No.3:  In the result, the complaint is allowed in part, directing the opposite parties 1 and 3 to refund the mobile cost amount of Rs.18,990/- with interest at 9% p.a. from the date of complaint i.e. 18.03.2016 till the date of realization and pay compensation of Rs.3,000/- to the complainant. We further direct the opposite parties 1 and 3 to pay Rs.1,000/- towards costs of the complaint to the complainant. Rest of the claim of the complainant is hereby dismissed. Time for compliance is two months from the date of this order. Claim against the opposite party No.2 is dismissed.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the           

6^th day of December, 2016.

    

                 Sd/-                                                                                                                             Sd/-

              MEMBER                                                                                                                 PRESIDENT

         

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                                                                             FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

Ex.A1    O/c of legal notice dt.24.02.2016 got issued by the complainant to the opposite

               parties.

Ex.A2    Postal receipts total 3 in number.

Ex.A3    Postal acknowledgements of 1^st & 2^nd opposite parties.

Ex.A4    Original bill along with the complaint copies.

 

 

FOR 1^st OPPOSITE PARTY:-   - Nil -

 

 

                  Sd/-                                                                                                    Sd/-

              MEMBER                                                                                        PRESIDENT