BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR
C.C. No.349 of 2014 Date of Institution: 17.9.2014
Date of Decision: 23.2.2015
Gurpreet Singh, aged 31 years, son of Ajit Singh, resident of Ward No.1, House No.187, Tehsil Zira, District Ferozepur.
....... Complainant
Versus
1. Vaishnavi Mobile Plaza, Railway Road, Opposite Gaushala Road, Zira, District Ferozepur, through its Authorized Signatory.
2. Kristal Enterprises (Service Centre), 1st Floor, Adjoining Bank of India, Shaheed Udham Singh Chowk, Ferozepur, through its Authorized Signatory.
3. Sony India Private Limited, A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044, through its Authorized Signatory.
........ Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * *
PRESENT :
For the complainant : Sh. Kunal Behal, Advocate
For opposite party No. 1 : Sh. Harish Puri, Representative
For opposite party Nos. 2 & 3 : Sh. J.S. Sodhi, Advocate
QUORUM
S. Gurpartap Singh Brar, President
S. Gyan Singh, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant purchased the mobile bearing Model No.Xperia C 2305 bearing IMEI
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No.358095054245822 from opposite party No.1 on 12.3.2014. Opposite party No.2 is the Service Centre and opposite party No.3 is the manufacturer/import company. Further it has been pleaded that at the time of purchasing the mobile, a guarantee of one year was given to the complainant. On the next day i.e. 13.3.2014, the complainant approached opposite party No.1 and told him that there was no power in the mobile phone, upon which opposite party No.1 told the complainant to get if fully charged because of new battery. Thereafter, the complainant started his internet services, then the mobile was firstly hanged and then ultimately it became switched off. Thereafter, the complainant again approached opposite party No.1 and reported the matter, but the complainant was told that there was some manufacturing defect in the mobile and advised him to approach the Service Centre to claim the guarantee for replacement purposes. Thereafter, the complainant approached opposite party No.2 on 26.3.2014 and lodged the complaint vide No.KF3FY14-03/0000106 that there is no power in the mobile and only software was done by opposite party No.2, but mobile in question was not working properly and on 17.4.2014, the complainant again approached opposite party No.2 and lodged complaint vide No.KF3/FY14-040000053 that there is no power in the mobile and opposite party No.2 again done the software, but thereafter the set was not working properly. Further it has been pleaded that on
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8.5.2014, the complainant again approached opposite party No.2 and requested that there is no power in the mobile and complainant has already got done the software two times from opposite party No.2, but the mobile set is not in working condition. The complainant requested them to change the mobile set with new one, as there was some manufacturing defect in the mobile and the complainant was facing problems from time to time. The complainant also requested that the mobile set in question was not working from the first day and said mobile was within the period of guarantee, but opposite party No.2 bluntly refused to accede the request of the complainant. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to replace the mobile with new one or to repay Rs.19,500/-. Further a sum of Rs.50,000/- has been claimed as compensation for harassment and Rs.11,000/- as litigation expenses.
2. Upon notice, the opposite parties appeared and filed their respective written replies to the complaint. In its written reply, opposite party No.1 has admitted that the complainant had purchase the mobile in question from opposite party No.1 and opposite party No.2 is service centre and opposite party No.3 is manufacturing company. Further it has been pleaded that the on the bill issued by opposite party No.1 at the time of purchase of mobile by complainant, it is clearly mentioned that all kinds of
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warranty will be given by brand service centre and not by opposite party No.1. Opposite party No.1 had purchased the mobile, which was further sold to the complainant and bill dated 28.2.2014 issued by ABC GLOBAL, also clearly show that the warranty will be given by the company only. Opposite party No.1 only re-sold the mobile. The warranty was always given by the company or service centre, who are opposite party Nos. 2 and 3 in this case. Opposite party No.1 is not liable for any service or warranty. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
3. In their joint written reply, opposite party Nos. 2 and 3 have pleaded that the complainant had purchased a Sony Xperia C mobile handset bearing Model No.C2305 on 12.3.2014 after a detailed demonstration of the features, functions, applications by opposite party No.1 and after satisfying himself with the condition of the mobile phone. Opposite party No.3 provides a 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. Further it has been pleaded that the complainant after enjoying the handset in question without any sort of defect approached the authorized service centre of the opposite parties for several times on 25.3.2014, 12.4.2014 and lastly on 1.5.2014 claiming and raising the issue of “no power”. However, every
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time it was noticed that the complainant deeply discharges the battery thereof with a view to represent the handset in dead condition, which absolutely works fine after charging for a few minutes. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
4. Learned counsel for complainant tendered into evidence Ex. C-1 to Ex. C-5 and closed evidence on behalf of the complainant. On the other hand, learned counsel for opposite parties Nos.2 and 3 tendered into evidence Ex.OP-2 & 3/1 to Ex.OP-2 & 3/3 and closed evidence on behalf of opposite party Nos.2 & 3. Opposite party No.1 did not lead any evidence despite availing sufficient opportunity for this purpose. Therefore, evidence of opposite party No.1 was closed by order dated 23.1.2015.
5. We have heard the learned counsel for parties and have also gone through the file.
6. Purchase of the mobile handset of Sony Xperia C in question with a warranty of one year by the complainant from opposite party No.1 vide Retail Invoice Ex.C-2 dated 12.3.2014 has been admitted. The grievance of the complainant is that the mobile handset in question has some manufacturing defect in it, as a result of which it was not working properly, but the opposite parties have failed either to remove its defect or to replace it with new one despite repeated visits of the complainant. The
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complainant has placed on the file photo copy of Retail Invoice/Cash/Memo/Bill Ex.C-3 to Ex.C-5, a perusal of which reveals that the complainant had approached opposite party No.2 on 26.3.2014, 17.4.2014 and 6.5.2014 with a complaint of ‘No Power’ in the mobile handset in question and every time opposite party No.2 installed the software of the mobile handset in question. Opposite party Nos.2 and 3 have pleaded in their written reply that the complainant approached the authorized service centre of the opposite parties for several times on 25.3.2014, 12.4.2014 and 1.5.2014 claiming and raising the issue of ‘no power”, however, every time it was noticed that the complainant deeply discharges the battery thereof with a view to represent the handset in dead condition, which absolutely works fine after charging for a few uninterrupted minutes. But no such remarks has been found recorded by opposite party No.2 in the above referred to Invoice/Cash/Memo/Bill Ex.C-3 to Ex.C-5. Even otherwise, had there been so, opposite parties could have
moved an application for getting the mobile handset in question checked from an expert, but no request in this regard has ever been made by opposite party Nos.2 and 3 during the proceedings of the present complaint. Occurrence of one and the same defect time and again itself leads to the conclusion that there is some manufacturing defect in the mobile handset in question that is why the opposite parties have failed to
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rectify its defect and put it in proper working condition. In para No.2 of preliminary objections of their written reply, opposite party No.2 and 3 have made reference of the terms of warranty provided by opposite party No.3 that Sony warrants the product to be free from defects in design, material and workmanship at the time of original purchase by a consumer and for a subsequent period of one year, which is the warranty period. If, during the warranty period, the product fails to operate under normal use and service, due to defects in design, materials or workmanship, Sony authorized distributors or service partners, in the country/region, from where the product is purchased, are at their option either repair, replace or refund the purchase price of the product in accordance with the terms and conditions stipulated herein. In the present case, the mobile handset in question developed defect of ‘No Power’ soon after its purchase and the said defect is occurring time and again, as is apparent from above referred to Invoice/Cash/Memo/Bill Ex.C-3 to Ex.C-5. It is also not the case of the opposite parties that the said defect has occurred in the mobile handset in question due to normal wear and tear or due to misuse. It is also not the case of the opposite parties that the said defect of ‘No Power’ has occurred due to accident, modification or adjustment, acts of God or damage resulting from liquid. In “Jugnu Dhillon Versus Reliance Digital Retail Ltd. & others”, 2014 (1) CLT 588, compressor of the newly purchased
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AC had failed and the Hon’ble Delhi State Commission has held that failure of the compressor of the AC within 2-3 months of its purchase itself amounts to manufacturing defect and principle of res ipsa loquitur should have been applied. The Hon’ble Delhi State Commission has further held that in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again, then the consumer will be put to much larger harassment because he had to fight another bond of litigation, which will be highly torturous. In the present case also, the alleged defect in the mobile handset in question occurred during its warranty period and the opposite parties have failed to rectify its defects despite repeated repairs. Therefore, it is clear beyond doubt that the mobile handset in question has some manufacturing defect and it is beyond repair. Therefore, the complainant is entitled to refund of the sale price of the mobile handset in question i.e. Rs.19,500/-. The opposite parties are also liable to pay suitable compensation for harassment and litigation expenses to the complainant.
7. In view of what has been discussed above, this complaint is accepted and opposite party Nos.1, 2 and 3 are directed jointly and
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severally to refund Rs.19,500/- as sale price of the mobile handset in question. Opposite party Nos.1, 2 and 3 are further directed to pay a sum of Rs.2000/- as compensation for harassment and Rs.1000/- as litigation expenses to the complainant. The complainant is directed to return the old mobile handset in question to opposite party No.1 within 10 days from the date of receipt of a copy of this order. This order is directed to be complied with jointly and severally by opposite party Nos.1, 2 and 3 within a period of thirty days from the date of receipt of a copy of this order. File be consigned to the record room.
Announced
23.2.2015
(Gurpartap Singh Brar) President
(Gyan Singh) Member
