BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 12^th August 2015        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 50/2015  

Complainant/s:

P.Mohamed Idhreus, Age about 25 years, Occ: Area Manager, R/o. #122/IIIB, III floor, BDP Plaza, New Cotton Market, Karnataka Bank Road, Hubli 580029.

(By Sri.B.G.Salimath, Adv.)

v/s

Respondent/s:

1. WS Rerail Services Pvt. Ltd., Ozone Manay Tech Park, No.56/18, ‘B’ Block, 9^th floor, Garvebhavipalya, Hosur Road, Bangalore 560068, Karnataka, India.

(By Sri.P.S.Kalasur, Adv.)

2. Upadhaya Electronic Device, Emkay Complex, Door No.7, 1^st Floor, Kusugal Road, Mathura Colony Stop, Hubli 580023.

3. Sony India Ltd., Mathura Road, New Delhi 110001.

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to replace new mobile set or to direct to refund cost of the mobile set along with cost of Rs.112-36 collected towards repair charges, to pay Rs.2 lakhs towards compensation for harassment and mental agony, Rs.5000/- towards legal notice charges to order for cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, on 19.12.2013 the complainant purchased Sony Xperia Z1 Black model no.6902 for Rs.38349/- from respondent.1 manufactured by the respondent 3. At the time of purchase the respondent.1 had induced the complainant that the said model is waterproof phone and could be used in swimming pool also. After purchase, the said mobile set starts defective display on 04.10.2014 immediately the respondent 2 being authorized service center for respondent 3, approached R2 and delivered the same for checkup during the warranty period under job card dt.13.10.2014. The respondent.2 charged Rs.112-36 towards the repair charges though it was under warranty period. On 13.10.2014 respondent.2 through written communication replied to the complainant that there is no display in the said set and returned the same to the complainant unrepaired. The complainant is a consumer under all the 3 respondents. The respondents have failed to render service to the complainant which amounts to deficiency in service amounting to unfair trade practice. Hence, the complainant on 23.12.2014 got issued notice to the respondents either to replace the mobile set or to refund the cost of the mobile set along with Rs.2 lakhs towards mental agony and harassment.The respondents neither replied nor repaid the amount or replaced. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum to the respondents, only respondent 1 appeared while respondent 2 and 3 remained absent. Hence, they have been placed exparte and exparte proceedings were initiated against respondent 2 and 3.

4.     While the respondent 1 filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the very complaint is not maintainable either on law or on facts & prays for dismissal of the complaint. Further the answering respondent also taken contention that the answering respondent is only a dealer and seller of the mobile set manufactured by respondent 3. Whatever the defects or liability for that the answering respondent is not liable & in turn prays for dismissal of the complaint against the answering respondent. Among such other admissions and denials the answering respondent admits the coverage of the warranty period and liabilities in accordance with the terms and conditions of the warranty & narrated in detail with regard to the sale and purchase of the mobile set in question & denied the liability of him by quoting the case laws of apex courts and prays for dismissal of the complaint with cost.

5.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit, relied on documents.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

6.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  that the complainant had purchased the mobile set in question from respondent 1 manufactured by respondent 3 through online transaction restricting to the liability in accordance with the warranty card terms and conditions.

7.     Now the question to be determined is, whether the defects traced is within the coverage of the warranty, non rendering of the service by the respondents amounts to deficiency in service, if so, for what relief the complainant is entitled.

8.     By looking into the Ex.C1 tax invoice it is nodoubt that the complainant had purchased the mobile set in question from respondent 1 manufactured by respondent 3. By perusal of the Ex.C2 i.e. estimation copy issued by the respondent 2 dtd.13.10.2014 showing the defects it is evident that the mobile set is suffering from some defects viz., liquid ingression & no display. Both in Ex.C1 and C2 it is shown the warranty for accidental damages is within 6 months from the date of purchase and to the date of 1^st  complaint. At the time of 1^st approach of  respondent 2 by the complainant that warranty has been expired & it exceeds the warranty period of 6 months. On keen observation of invoice Ex.C1  & estimation copy Ex.C2 it is shown 6 months accidental damages protection program. On perusal of Ex.C6(1) Startup guide it is highlightend protecting your devise from water & dust. As admitted by the complainant himself and also as per Ex.C6(1) Startup guide the mobile set in question can be used even in the water pools also. By looking into this fact & also the Ex.C2 estimation copy issued by the R2 wherein in Ex.C2 it is specifically remarked “liquid indicator red (liquid ingression warranty void)”and also it is mentioned “no display”. In the tax invoice it is mentioned warranty 6 months against accidental damages.

9.     The very grievance of the complainant is that against to the waterproof water ingresed within one year hence it covers warranty as per Ex.C6(2) at page.18. Where the respondent contends accidental coverage warranty covers only to an extent for 6 months from the date of purchase towards accidental damages. But there is no evidence with regard to the fact that the mobile set in question is subjected to accidental damages. When this contention is raised by the respondent the burden lies on the part of respondent to establish the same, the said defects have been arosed and water /liquid ingressed into the mobile set due to accidental damages is lies on the respondent. But the respondent did not adduced any such evidence to establish their contention that the subject matter mobile set has subjected to the accidental damages. When the respondents have collected heavy amount on the device on the guise of waterproof & when the water has been ingressed within the period of 1 year certainly it covers the warranty period as per Ex.C6(2). In the absence of accidental damages.

10.   Further perusal of the Ex.C2 as per the remarks made by the engineer of R2 there is no display, probably it might be due to ingression of water. Inspite of it, since the respondents have not set right the said defects it amounts to deficiency in service. Interalia, the complainant established his case of deficiency in service with cogent and apulsive evidence Hence, he is entitled for the relief.

11.   In view of the above discussions we have arrived and proceed to held issue.1 in affirmative and 2 accordingly.

12.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        Complaint is allowed in part. The respondents jointly and severally directed to replace the defective mobile set with new one along with Rs.2000/- as compensation and Rs.1000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order & to collect the old one from the forum. Failing to comply the same, the respondents shall refund the cost of the mobile set along with interest @9% P.A. from thereon till realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 12^th day of August 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR