Mr. Nitin Gulati son of Sh. Kewal Krishan Gulati, r/o 1298/112-B, Phase-II, Shaheed Karnail Singh Nagar, Pakhowal Road, Ludhiana.

Versus

1- Amit Kumar son of Sohan Lal Prop. of M/s B.M. Services, Shop no.6, Pearl Palace, Ghumar Mandi, Ludhiana.

2- Salora International Limited (Branch Office), 682/L, Ist Floor, Model Town, Johal Market, Jalandhar, through its Manager/Authorized Signatory.

3- Salora International Limited (Branch Office), SCO 206-207, IInd Floor, Sector 34-A, Chandigarh.

1- After purchase of mobile Sony Ericsson handset K550i, complainant experienced the same having manufacturing defect. The set was giving problem of poor networking and charging, so it was taken to opposite party no.1 on 2nd June, 2008, who took the handset, assuring to return after repair within 2 days. On 4th June, 2008, the set was returned, but the same problem persisted. Consequently, on 6th June, 2008, the handset was entrusted to opposite party no.1, who then remarked that it would be swapped with another one by opposite party no.2 within a week. After one week, they again took period of 2 days and the swapped handset was delivered to him on 27.6.2008. But that set had also the same problem and it was also not in working condition. Consequently, took up matter through e-mails dated 29th June, 2008 and 6th July, 2008 with opposite party. As services provided by opposite party, were deficient and the handset was not working properly, so served legal notice dated 17.7.2008 on opposite party no.1, requiring them to replace the defective set and pay Rs.10,000/- compensation.

Opposite party had then taken back that handset from the complainant with understanding that he would change it with a new set. The version was believed and the set was entrusted to opposite party no.1 on 8.8.2008 vide receipt no.14195. He promised to handover new handset within 4 days after obtaining it from opposite party no.3. Then approached opposite party several times, but he evaded replacement of the handset and ultimately, refused to give new set. Consequently, in this complaint u/s 12 of the Consumer Protection Act, 1986, for such deficiency of service on part of opposite party, claimed compensation of Rs.10,000/- with direction to replace defective mobile handset with fresh one.

2- Opposite party in their joint written statement, averred that complaint has been filed by the complainant on false, frivolous allegations, so not maintainable. Purchase of set by the complainant and bringing it for repairs, on complaint of defect, is admitted. But claimed that defects so reported, were rectified to the satisfaction of the complainant. The set was sophisticated electronics gadgets, requiring precautions while using the same. Complainant had used the set for more than 10 months and came to them after a long time on 2.6.2008 for replacement. But that request is not genuine, therefore, not tenable. Hence, there is no deficiency in service on their part. It is in these circumstances conceded that on 4th June, 2008, handset after repair was returned to the complainant. There was no problem in the set thereafter. Also denied that swapped handset was given to the complainant on 27.6.2008. Service of registered notice by complainant or handing over set for replacement, are also denied. They have prayed dismissal of the complaint.

3- To prove their respective claims, both parties adduced evidence in the shape of affidavits and documents. We have heard ld. counsel for parties and also scanned the documents and other material placed on the file.

4- Outrightly, we may say after hearing the parties that case of the complainant is fully born out from material brought on the record by him. The handset was purchased by the complainant for Rs.8700/- vide invoice Ex.C1 dated 8.9.2007. Complainant in support of his allegations, has filed his affidavit Ex.CW1.

We have no reason to disbelieve the same. Because his assertion that handset had a defect which was taken to opposite party no.1 and after repair, returned to him, but the defect still persisted and thereafter, the same defective set was swapped with another one by opposite party on 27.6.2008, is born out from the record. Ex.C3 is the service job card dated 27.6.2008 of the opposite party, showing that his earlier set was swapped with another one on account of networking, charging and side key problem in the previous set. So, it means the original handset purchased by complainant vide invoice Ex.C1, was defective and the same was swapped with another set by opposite party no.1.

5- Next allegations of the complainant that swapped set was also having manufacturing defect, forcing him to issue legal notice dated 17.7.2008 Ex.C4 under postal receipts Ex.C5 and Ex.C6 to the opposite party, is also established. Complainant vide that notice, called upon opposite party, to exchange his defective handset with new one and to pay compensation of Rs.10,000/-.

Then complainant claimed that after receipt of such notice, opposite party no.1 obtained the defective handset with a promise to exchange the same with new one. But later on, backed out of such promise. This part of allegations is also thoroughly established from receipt Ex.C2 dated 8.8.2008. Under that receipt, handset of the complainant was received with complaint of not filling battery, USB problem and networking problem. Therefore in these circumstances, we have no hesitation, to believe affidavit Ex.CW1 of the complainant that after receipt of notice Ex.C4, opposite party no.1 took the handset from him and thereafter, never returned it. Complainant in support of his allegations that handset was defective, has placed affidavit Ex.CW2 of his senior Sh. P.S Ghumman.

6- That handset taken for repairs by opposite party no.1, is still possessed by him, who neither repaired nor replaced it with new one.

7- Though opposite party no.1 Sh. Amit Kumar has also filed his affidavit in support of defence. But it deserves no consideration, for the reasons that complainant in these circumstances, has been able to establish beyond doubt that the swapped handset was also found defective. Then he lodged complaint and opposite party no.1 on 8.8.2008, took that handset being defective.

He promised to supply a new handset, which promise was never fulfilled. Sequel to the discussions, we are fully convinced in such circumstances that swapped handset given by opposite party no.1 to the complainant, was also having manufacturing defect. Therefore, it was taken back with promise to exchange the same with new one, which was never done. Consequently, opposite party by retaining defective handset of the complainant, not repairing it or not exchanging the same with new one, certainly deprived the complainant from using the facility, after spending huge amount for purchase of the handset. Therefore, opposite party certainly would be guilty of deficiency in service towards its own consumer.

8- In these circumstances, we allow this complaint and as a result, direct opposite party to provide a new Sony Ericsson K550i mobile handset to the complainant within 30 days of receipt of copy of the order and also pay him compensation for causing harassment, anxiety and sufferance, amounting to Rs.3000/- and litigation costs of Rs.1000/-.

Dr. Dalbir Kaur daughter of S. Gurcharan Singh, resident of H./No.1181/1, Harnam Nagar, Model Town, Ludhiana.

Versus

1- M/s Sonny Ericson, Essar House,P.O. Box 7945m 11, K.K. Marg, Mahalaxmi, Mumbai-400034(India.

2- M/s Essar Telecom Retail Limited, C/o The Mobile Store, Shop no.10, Shastri Nagar, Model Town, Ludhiana.

3- M/s Harjeeo Corporation, 296-BX-Model Town Extn. Near Atta Chakki, Ludhiana.


1- Complainant purchased mobile handset model W380i, no.000047104, IMEI no.352704023396287 vide invoice dated 23.5.2008 for Rs.8199/- from opposite party no.2, retail seller of the manufacturer of the handset, opposite party no.1. The handset went out of order on 18.11.2008 and the defect was brought to notice of opposite party no.2 through its mobile store, for removing the defect. They referred the complainant to opposite party no.3, authorized service centre of opposite party no.1. They checked the handset and received the same for service on 18.11.2008. Complainant was assured to redeliver the same on 25.11.2008, after removing the defect. On 25.11.2008, was required to come on 2.12.2008, on which date, again time was sought on the ground that part of the set has not been received from the company.

This continued for another 15 fays and set was not returned after repair despite repeated visits. On 17.12.20008, written request was made to opposite party no.1 & 2 but no reply was received. Non return of the handset after repair, has caused inconvenience to the complainant, who is a practicing doctor and has caused her mental agony and tension besides financial loss. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, for direction to opposite party to return cost of mobile handset and pay her Rs.20000/- by way of compensation alongwith Rs.2000/- as litigation costs.

2- None of the opposite parties contested the complaint and as such, are being proceeded exparte.

3- Though when the case was taken for exparte evidence, opposite party no.2 appeared through counsel, but took no steps to get exparte order set aside.

4- Complainant led exparte evidence by way of affidavit and documents. Stood heard through her counsel.

4- Complainant in exparte evidence, tendered her own affidavit Ex.CW1/A, alongwith invoice Ex.C2 qua purchase of handset on 23.5.2008. There is a proof that handset developed defect which was handed over to service centre of opposite party, vide service tag Ex.C3, for ringer problem during warranty period. The handset as such, was received by opposite party no.3, service centre of opposite party no.1 and despite receipt of the set, defect therein was neither rectified nor the handset was returned to the complainant. Therefore, we believe affidavit of the complainant that the handset is still with the opposite party.

5- By not returning the handset to the complainant after repair, opposite party certainly would be guilty of resorting to unfair trade practice, which caused inconvenience to the complainant. Therefore, we pass exparte order, directing opposite parties to pay cost of the handset amounting to Rs.8199/- to the complainant and also pay her compensation of Rs.1000/- for inconvenience and Rs.500/- as litigation costs, within 45 days of copy of receipt of the order

Sri. M.C. Ashok, S/o. Rudre Gowda,

Aged 39 years, Coffee Business,

Chennapura Road,

CHIKMAGALUR CITY.

(By Sri. Gerald Dias, Adv.)

V/s

OPPONENTS:

1. M/s. Univercell,

Univercell Telecommunication –

India Pvt., Ltd., M.G. Road,

CHIKMAGALUR.

2. M/s. Univercell, Regional Office –

Nos.1 and 2, 3rd Main Road,

Seshadripuram,

BANGALORE – 20.

(Opponents are placed Exparte)

Written by Sri. H.S. Rudrappa, Member

- ::: O R D E R ::: -

1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponents for the deficiency of service and praying to give directions to replace the defective mobile hand set or to refund the sale consideration amount of Rs.15,375/- along with the court costs as detailed in the complaint.

2. The gist of the complaint and the averments are as below:

On 07.12.2008 the complainant has purchased a mobile hand set, Sony Ericson G-700 bearing IME:7 No.:35388702155 3451 from the 1st opponent for which the opponent has issued Tax Invoice UKA:135607. Since the hand set was not working satisfactorily, the complainant had contacted and handed over the said hand set for repair with the 1st opponent. The said opponent after getting the mobile hand set repaired at Cell Solutions, Bhanu Kalyana Mantap Building at Hassan, and delivered the same to the complainant on 06.01.2009.

Inspite of its repair, the hand set again went wrong and it is almost a dead set, the fact of which has been brought to the notice of the opponents. Knowing the fact of the mobile set fully, the opponents sold the same to the complainant, which is having manufacturing defect with the intention to cause wrongful loss to the complainant and wrongful gain for themselves. Inspite of repeated requests to replace the said hand set with a new one, the opponents have failed to act upon for which he got issued a legal notice dtd.23.02.2009 calling upon the opponents to attend to their request.

3. Further the complainant has alleged that he is a businessman dealing in purchase of coffee from the growers and selling the same to the coffee curing works. The complainant was using the mobile in question for his business purpose. Hence the opponents are liable to make good the loss with the result the complainant has suffered for more than Rs.25,000/-. Hence, this complaint for the above referred reliefs.

4. On receipt of the complaint, this Forum has issued notice to the opponents calling them to appear and submit their version. Inspite of service of notice, the opponents neither have appeared in person nor through their legal counsel, but remained aloof from the court proceedings and therefore, we have set them as exparte.

5. The complainant has filed his affidavit evidence as PW.1 and sworn before this Forum and produced the documents along with one Mobile Hand Set in question, which are marked as Exs.P1 to P4 and the Hand Set as M.O.1 respectively.

6. As the opponents have been placed exparte, ultimately we heard the arguments on merits from the complainant.

7. In the proceedings, the following points do arise for our consideration and decision:

i) Whether the complainant is a consumer under the Consumer Protection Act, 1986?

ii) Whether there is any deficiency in service on the part of the opponents?

iii) Whether the complainant establishes his claim alleging deficiency of service?

iv) What Order?

8. Our findings on the above points are as follows:-

i) Point No.1: Yes.

ii) Point No.2: Yes.

iii) Point No.3: Yes.

iv) Point No.4: See the operative portion of

the order.
- ::: R E A S O N S ::: -

9. Point No.1: From the records placed before this Forum, as per the Tax Invoice dtd.07.12.2008, the complainant has purchased one Sony Ericson G.700 IME:35388702155 3451 against the payment of Rs.15,375/- (Rupees: Fifteen Thousand Three Hundred Seventy five only). As the consideration amount of Rs.15,375/- was passed on to the opponents, invariably, the relationship of consumer and seller has been established and the complaint false well within the provisions of Consumer Protection Act, 1986. The complainant is right in approaching this Forum for ventilating his grievances as per the existing provisions. Therefore, we answer this point in favour of the complainant and hold that he is a consumer.

10. Point No.2(a): From the records available with this Forum, we have to establish as to whether there is any deficiency of service crept in on the part of the opponent and also to know the veracity and genuineness of the claim. The complainant has produced a copy of the tax invoice dtd.07.12.2008 to show that he has purchased a mobile hand set. Further the complainant has produced a legal notice dtd.23.02.2009 addressed to the opponents requesting them to replace with a new hand set, which is marked as Ex.P2.

On perusal of this exhibit produced by the complainant, we noticed that the opponents have not rectified the defects of the mobile hand set in question. By perusing the Ex.P2, it is crystal clear that the opponents have failed to give adequate remedy to the demands of the complainant, which is a well nigh evident that the opponent has not rendered service, which tantamount to deficiency of service.

b) From the Ex.P1 brought on record clearly indicates that the opponents have collected the disputed mobile hand set and got it repaired through their agents M/s Cell Solutions, Hassan and delivered it to the complainant on 06.01.2009 will certainly vindicates the claim of the complainant that the same set under dispute is having certain inherent manufacturing defect.

11. Point No.3(a): The hub of the complainant is that the opponents have dodged on one pretext or the other to replace the handset and we observed that the opponent has adopted a dilly-dally attitude without any valid reasons and failed to attend to the request of the complainant in rectifying the inherent defects of the mobile hand set. Since the consumer dispute has arisen, the parties were called upon to file their claims in the form of affidavit and documents, for which the complainant has filed the same, whereas the opponents did not chose to file their claims and remained absent which leads us to draw an inference that the opponents are admitting the allegations made by the complainant in toto, which has been construed as an act of unimpeachable evidence in favour of the complainant.

Under these circumstances, our observation clearly goes to show that the opponents by their omissions and commissions remained deficiency in rendering the services as per the provisions of the Consumer Protection Act, 1986. Therefore, we record our views in favour of the complainant.

b) We noticed that the opponents have sold a defective hand set and failed to rectify the same, which is nothing but adopting unfair trade practice. Therefore, the complainant is entitled to get back new trouble free hand set in place of old one.

c) So far as the compensation is concerned the complainant has not placed any break-up details and documents to show that he has suffered a loss to the tune of Rs.25,000/-. However, in the interest of justice, he is entitled to get Rs.3,000/- towards compensation for the utter negligence and inconvenience caused by the opponents along with court costs of Rs.1,000/-.

12. Point No.4: In view of our findings in the foregoing paragraphs, the complaint filed by the complainant has to be allowed and therefore, we inclined to pass the following order:

- :::O R D E R::: -

1. The complaint filed by the complainant is partly allowed.

2. The opponent is hereby directed to replace the defective Sony Ericson Mobile Hand Set in question with a new one.

3. The opponents are also liable to pay Rs.3,000/- as compensation for their unfair trade practice and causing inconvenience to the complainant along with court costs of Rs.1,000/- amounting to Rs.4,000/-, within one month from the date of issue of this order, failing which the amount shall carry interest at 9% P.A. from the date of default till the realisation.

Mr. Deepak Somnath Kore,

R/at : 176/A2/26,

Parvati Gaon, Pune – 411 009. … COMPLAINANT

: Versus :



1. Sony India P.Ltd.,

Address :- Sony India Pvt. Ltd.,

A-31, Mohan Co-Op. Indl. Estate,

Mathura Road, New Delhi – 44.



2. Dass Electric Trading Co.(P) Ltd.,

5, Chetna Apts., Saifee Lane,

Camp, Pune – 411 001.



3. Salora International Ltd.,

Punjab Co-Op. Hsg. Soc.,

Plot No. 1, 687/8, Bibvewadi,

Pune – 411 037. … OPPOSITE PARTIES


// JUDGMENT //

The present complaint is lie in a very narrow compass. Alleging deficiency in service on the part of the Opposite Parties, the Complainant has filed the present complaint and has claimed various reliefs, as prayed in the complaint application.

[2] The Complainant had purchased one mobile handset manufactured by the Opposite Party No.1 from the Opposite Party No.2 for Rs. 13,500/-. The particulars of the said mobile is as under :-

Model No. W 810i, S.No.B.D. 3055 Y WOD,

IMEL No. 35233701 – 089098-6

Battery No. 006331 PTKMBN 06W11

Speaker No. MPS-60-N-12878

Bill No. 3818 LSR dtd.13th Feb. 2007.

[3] In his complaint, he further stated that the said mobile set was not functioning properly. Mainly, battery display and charging was not shown correctly. The said defects were shown to the Opposite Party No.2. The Opposite Party No.2 regretted and assured that all the defects in the said handset would be cured and if not replacement to the same would be made.

With these, the Opposite Party No.2 requested the Complainant to approach the Opposite Party No.3, who was authorized for repairing. The Complainant approached the Opposite Party No.3. At that time, the Opposite Party No.3 was very discourteous and reluctant to repair. Hence the Complainant was forced to visit number of times to the Opposite Party No.3. The Complainant sent e-mails to the seniors with the defects of the handset. The Opposite Party No.3 had kept the said handset for a long period and wrote that “no fault and return back”. Though it was under warranty, inspite of repairs, the handset was not working satisfactorily. Due to this, the Complainant was to suffer a lot of inconvenience. The arrogant and irresponsible behaviour of the Opposite Parties has made the Complainant very humiliating.

[4] The Complainant gave the said handset for repairs to the Opposite Party No.3. At that time, the Opposite Party No.3 has corrupted the important data. In this process, the Complainant had lodged number of complaints with In-charge Senior Persons, who after two months refused replacement. In the meanwhile, the Complainant written complaint on e-mail, however the Opposite Parties never responded.


[5] Due to the negligent behaviour of the Opposite Parties, the Complainant suffered a lot of inconvenience and harassment, so he lodged the complaint with the Forum praying the following relief :


1. The Opposite Parties Nos. 1 to 3 be ordered and directed to give new handset of Sony Ericsson W810i to the Complainant.

2. In the alternative, the Opposite Parties Nos. 1 to 3 be ordered and directed to pay jointly and severally an amount of Rs.13,500/- being the price of the said mobile alongwith Bank rate interest till date.

3. The Opposite Parties Nos. 1 to 3 jointly and severally be ordered and directed to pay compensation at Rs.50,000/- to the Complainant.

4. The cost of the complaint be awarded.

5. Such other order and direction be given to the Opposite Parties as may be deemed just and equitable.

6. Compensation from all jointly or severally any one of them.


[6] Alongwith the complaint application, the Complainant has also filed relevant documents, such as, affidavit, receipts and correspondence etc..


[7] After the issuance of the notice of the Forum, the Opposite Parties Nos. 1 to 3 have appeared and resisted the claim by filing their respective written versions and affidavits.


[8] The contention of the Opposite Party No.1 is only that the issue relates to alleged deficiency in service in respect of Sony Ericsson W810i model handset, of which, the Opposite Party No.1 is neither the manufacturer nor the repair service provider for the said mobile handset. Hence the Opposite Party No.1 may be discharged from the case.

[9] The Opposite Party No.2 stated that as far as repairing of any product is concerned, since it requires diagrams of the circuit and technical expertise, it is only done by the manufacturer or their authorized service agent. So we directed the Complainant to the authorized service agents appointed by the Manufacturer for repairs.

[10] The Opposite Party No.3 has denied the complaint and stated further that the complaint of the Complainant is very vague. It is also further stated that this Forum has no jurisdiction as in their job-sheet, specifically mentioned that “the dispute shall be referred to the Arbitrator”. The Complainant has purposefully avoided to produce the reverse side of the job-sheet which states the terms and conditions in respect of service and repairs. It is further stated that the Complainant in para (4) has given the list of complaints made by him, however, the Complainant has neither produced any job-sheet for the alleged complaint on record and not stated as to when the Complainant had received the handset after repairs. According to the Opposite Party No.3, it is totally false that the Opposite Party No.3 did not give proper service and not adhered warranty rules. In written version particularly, para (15), it is averred by the Opposite Party No. 3 that the Complainant has received the replacement of the handset, which the Complainant has purposefully suppressed the material fact from the Hon’ble Forum.

Even the Complainant has produced a copy of the job-sheet on the record, which is given to him while taking the same for replacement by the Opposite Party No.3. But the Complainant has avoided to produce the copy of the job-sheet, which contains his signature of receiving replacement delivery. The Opposite Party No.3 had replaced the handset, but the Complainant had again submitted that the said replaced handset is also having the same problems, which is not possible. Even otherwise, if the Complainant still wished to another replacement of handset, the Complainant ought to have submitted to the Opposite Party No.3 accordingly and the Opposite Party No.3 would have sent it to the Company, the ultimate decision being of the Company after checking the handset sent for replacement which the Complainant has not done at all after returning the replaced handset to him after thorough checking. Thus the Opposite Party No.3 has prayed that the complaint be dismissed.

[11] We have gone through all the case-papers, pleadings of the parties, evidence on the record. We also heard the arguments of all the parties.

The points which arose for our consideration are as under :-

Points Answers

1. Whether the Complainant is a “consumer”? Yes

2. Whether the Opposite Parties have committed

deficiency in service? No

3. What order? As per final order.


REASONS :

[12] Admittedly, the Complainant is a “consumer” within the meaning of definition of Consumer Protection Act, 1986. Even though, arbitration is specifically mentioned, this Forum has jurisdiction to entertain and try the present complaint as per the provisions of Section 3 of Consumer Protection Act, which is in addition but not in derogation.

[13] Even though the Opposite Parties No. 1 and 2 are the parties to the present complaint, according to us, they are the formal parties and therefore they are absolved from the complaint. It is evident from the record and proceedings that the Opposite Party No.3 has fully co-operated and replaced the alleged handset to the Complainant. There is no substance in the complaint.

[14] The Complainant in his complaint has averred all the defects in handset and availed the repairs and the replacement from the Opposite Party No.3. The replacement has not been disclosed by the Complainant, which comes under suppression of material fact. While arguing the matter, it has become crystal clear that the Complainant is only interested in compensation part from the present dispute. As the Opposite Party No.3 had given full co-operation and replaced the handset, no specific defect was proved and only for the whims of the Complainant, the Opposite Party No.3 was still ready to replace the handset, which he refused in the open Forum, saying that the Opposite Parties have harassed tremendously. The Forum is of the opinion that the Complainant has failed to prove the particular defects of the handset by producing the concrete evidence. As also, the replaced handset is already in the custody of the Complainant, the Form cannot grant any reliefs in this regard. According to us, the Complainant has suppressed the material facts, hence we dismissed the complaint with the following order :-


// O R D E R //
The complaint stands dismissed

I brought a sony ericsson K810i on 4th of march 2009. The handset worked like a charm for 3 months, then i started having problems with its joystick and the keypad also. I submitted my handset to the nearest Sony Ericsson service center, they repaired it and told me that the joystick oh my phone has been changed. After 4 hours or so the phone got stuck again with the same joystick problem and since then i hav submitted my handset almost 5 times to the service center and its still there. Sony Ericsson has cheated me by selling me a defective handset. Please help me out.




regards,
Mohnish Rohatgi
+919868077198

i brought sony ericsson mobile phone on 2008-07-19 model no w760i from sunny electronics,jaipur,rajasthan. handset is working properly for 6 months(approx) but after that phone has been submitted to service center for 4 times n first time they replaced I.C.they said now no problem will come but after 2 months again problem come of /freeze problem on/off problem.after 10 days they return my phone back but again after 20 days problem arrived of upper keypad low key pad problem. now they are replacing my phone and giving me w595 in exchange with w760i but the motive of purchsing w760i is not solved in w595 as it does not have motion gameing option n not have gps navigation.so please help me out.

Yelugoty Sreedhar,

S/o. Y.Reddaiah,

Flat No.302, 3rd Floor, Sai Suja Apartments,

D.No.9-66/23, New Maruthi Nagar,

Tirupati. … Complainant



And



1. The Manager,

Sony Ericssion Authorised Service Centre,

D.No.137A, K.K.Layout,

Tirupati.



2. The Manager,

GOLDEN Plaza,

115, Central Park,

Tirupati. … Opposite parties.







ORDER




This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to replace the defective mobile phone with a new one or in the alternative to refund the sale consideration of Rs.12,000/- along with interest from the date of purchase, to pay compensation of Rs.50,000/- for causing mental agony and hardship and to pay the costs of the complaint to the complainant.

2. The averments of the complaint in brief are :- The complainant purchased W5801-Sony Ericsson, IMIE No.359285016155511 mobile phone from opposite party No.2 retailer for Rs.12,000/- on 20.12.2007. The complainant purchased the mobile phone after being satisfied with the quality and warranty for such mobile phones and upto a period of two months since the purchase the complainant was very much satisfied with the working of the mobile phone.


But, subsequently the mobile phone used to went into switched off mode frequently. The complainant had to switch the phone on as and when it went into switched off mode. The complainant had been reporting the same to opposite party No.1, the authorized service agent and opposite party No.2, the retailer, but they were giving evasive replies. On 13.11.2008 the complainant approached opposite party No.2, who directed him to approach opposite party No.1. The opposite party No.1 for the purpose of servicing the mobile phone received the same from the complainant and returned the same on 17.11.2008 by charging Rs.600/- citing some reasons of replacement of certain part in the mobile phone.


The opposite party No.1 assured that the defect is rectified and there will not be any problem. Unfortunately, the problem with the mobile phone did not get rectified and the complainant has been facing the same problem. The complainant intimated the same to the opposite parties, but they gave reluctant answers. The complainant, who spent Rs.12,000/- for the purchase of mobile phone, is subjected to a lot of mental agony and hardship as the mobile phone falls short of quality and not suitable for use. The opposite parties are liable to replace the defective mobile phone with a new one as covered by the terms of the opposite parties warranty given on 20.12.2007. The opposite party No.1 is also liable to refund the amount of Rs.600/- taken by them under the guise of rectifying the defect.


The opposite party No.2, being the retailer of defective mobile phone is bound to compensate the complainant for selling such defective product. The complainant got issued legal notice to the opposite parties on 21.11.2008 and opposite party No.2 gave reply disclaiming any liability. The opposite party No.1 neither replied nor complied. Since the period of 3 months from the date of sending legal notice, the complainant had been facing the problem with the mobile phone getting into switched off mode frequently, which caused him lot of hardship by way of loss of work as the nature of his work necessitates himself to be available on the phone to his prospective customers. Because of the defect in the mobile phone the complainant had to loose a suitable portion of his work and that has lead to lot of mental agony to the complainant. Hence the complaint.

3. The opposite parties resisted the complaint. In the counter filed on behalf of opposite party No.1, while denying the allegations made in the complaint, it is inter alia stated that the warranty is valid only if the original proof of purchase issued by a Sony Ericsson authorized dealer and it will cover subject to terms and conditions of the warranty. The complainant approached opposite party No.1 on 17.11.2008 but not on 13.11.2008 and on that day, the opposite party No.1 clearly stated that the phone was dead due to liquid damage and it will not cover the warranty. The opposite party No.1 issued estimation slip on 17.11.2008 estimating the charges of Rs.600/- by mentioning O/W i.e. out of warranty.


The complainant suppressed the same and approached this Forum to get wrongful gain. The complainant was not interested to get the mobile repaired. So, he went away without handing-over the mobile. The damage to the mobile arose due to negligence of the complainant and subsequently the complainant never approached opposite party No.1. Condition No.3 at page No.74 of warranty books reads “This warranty does not cover any failure of the product due to nominal tear and wear, or due to misuse, including but not limited to use in other than the nominal and customary manner, in accordance with the Sony Ericsson instructions for use and maintenance of the product.


Nor does this warranty cover any failure of the product due to accident, software or hardware modification or adjustment, acts of God or damage resulting from liquid”. The complainant did not approach this Forum with clean hands. There is no negligence or deficiency in service on the part of opposite party No.1. The opposite party No.1 is not liable to pay any damages by way of compensation and incidental costs. The complainant unnecessarily dragged the organization to the Court of law and thereby caused much damage to the reputation of the organization for which he is liable for both criminal and civil action. The complaint may be dismissed with exemplary costs for non-joinder of necessary parties.

4. In the objections filed on behalf of opposite party No.2, while denying the material allegations made in the complaint, it is inter alia stated that though the complainant purchased the mobile phone from opposite party No.2, subsequently the opposite party No.2 is not aware of the events that took place as alleged in the complaint. The opposite party No.2 is only a dealer in mobile phones. The warranty and other services that are to be attended to the mobile phone in case of defect have to be done by opposite party No.1. The opposite party No.2 is no way connected to the service centre. It is entirely the province of opposite party No.1.


Hence, the opposite party No.2 is not liable to any of the consequences after selling of the mobile phone. The complainant never contacted opposite party No.2 at any time. It was not brought to the notice of opposite party No.2 about the defects in the mobile prior to issue of notice. The opposite party No.2 did not commit any deficiency in service towards the complainant. If at all there is any warranty, the complainant can avail it from opposite party No.1. The opposite party No.2 is unnecessarily added as party and hence the complaint is bad for non-joinder of parties. The opposite party No.2 is not liable for any damages. Hence the complaint is liable to be dismissed.

5. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A5. Ex.A1 is bill dt:20.12.2007 for Rs.12,000/- issued by opposite party No.2 in the name of the complainant. Ex.A2 is estimation dt:17.11.2008 issued by opposite party No.1. Ex.A3 is office copy of legal notice dt:21.11.2008 got issued by the complainant to the opposite parties. Ex.A4 is reply notice got issued by opposite party No.2 to the advocate for complainant. Ex.A5 is warranty certificate of Sony Ericsson issued by opposite party No.2.

6. In support of the case set up in the counter, the opposite party No.1 filed the booklet containing terms and conditions of the warranty, which is marked as Ex.B1. No documents are, however, filed on behalf of opposite party No.2.

7. On behalf of the complainant and opposite parties 1 and 2 written arguments were filed and we have heard the oral arguments of counsel of both sides.

8. On the basis of pleadings of both sides, the points that arise for determination are:-

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

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

9. Point No.1:- The brief facts of the case are:- The complainant on 20.12.2007 purchased W5801-Sony Ericsson mobile phone from opposite party No.2, who is the retail dealer of Sony Ericsson products for Rs.12,000/-. The opposite party No.2 issued Ex.A1 bill. The complainant approached opposite party No.1, the authorized service centre of Sony Ericsson complaining for rectifying the defect in the mobile phone.


The opposite party No.1 issued Ex.A2 estimation dt:17.11.2008 estimating the cost of some part and service charge at Rs.600/-. The complainant got issued Ex.A3 legal notice to both the opposite parties calling upon them to replace the defective mobile with new one and to pay compensation of Rs.5,000/-. The opposite party No.1 got issued Ex.A4 reply notice stating that he is only a retailer and he is not liable for any of the consequences after the selling of the mobile phone. The complainant filed the complaint on 26.05.2009.

10. The complainant’s case is that since two months after the date of purchase of mobile phone he has been facing the problem of the mobile phone getting into switched off mode frequently, that though he reported the same to opposite parties they never tried to help him by rectifying the defect and that when he approached opposite party No.1, as directed by opposite party No.2, on 13.11.2008 for the purpose of servicing, the phone was returned to him on 17.11.2008 by charging Rs.600/-.


His further case is that even subsequently he has been facing the same problem of mobile phone getting into switched off mode, that when he got issued legal notice to the opposite parties, the opposite party No.2 gave reply disclaiming any liability and opposite party No.1 neither replied nor complied to the notice and that opposite parties 1 and 2, who committed deficiency in service towards him, are liable to replace the defective mobile phone with a new one or in the alternative refund the sale consideration of Rs.12,000/- and pay compensation of Rs.50,000/- for causing mental agony and hardship to him and to pay the costs of the complaint.

11. The case of opposite party No.1 is that when the complainant approached the service centre on 17.11.2008, he was informed that the mobile phone was dead due to liquid damage, that as warranty does not cover damage resulting from liquid, they issued estimation slip estimating the charge for repair at Rs.600/- and that the complainant without handing-over the mobile for repair went away. The case of opposite party No.2 is that after purchasing the mobile phone the complainant never approached them, that they are only dealers in mobile phones and that in case of defect in the mobile phone, the opposite party No.1 has to rectify the same and that they are not liable for any consequences after the selling of the mobile phone.

12. The complainant adduced evidence by filing his affidavit stating that he has been facing the problem of mobile phone getting into switched off mode frequently and though he has been reporting the same to opposite parties they never tried to get the defect rectified. The complainant also filed 3rd party affidavit of one R.Thulasiram Reddy.


The said Thulasiram Reddy in his affidavit stated that he is a businessman running Cell and Watch shop at Hello Mobiles for the last 11 years, that when the complainant brought his Sony Ericsson mobile phone for repair, he informed him that he cannot attend to the mobile as he is not a authorized person to service such mobiles and that it is his opinion that the said mobile phone is getting switched off automatically because of some problem with the board. The opposite parties 1 and 2 did not adduce any evidence by filing their affidavits. Admittedly, when the complainant approached opposite party No.1 service centre, the opposite party No.1 issued Ex.A2 estimation. By the date of Ex.A2 estimation the warranty was in force.


According to opposite party No.1 the warranty does not cover as the damage was resulting from liquid. In Ex.A1 it is noted “O/W”. The counsel for the opposite party No.1 submitted that O/W indicates “out of warranty”. Ex.A2 shows that for service charge and replacement of part, the opposite party No.1 estimated Rs.600/-. In Ex.A2 it is not noted that the damage to the mobile phone was resulting from liquid. As the complainant approached opposite party No.1 within the warranty period complaining some defect in the mobile phone, the opposite party No.1 ought to have issued job card mentioning the complaint made by the complainant. There is no explanation from opposite party No.1 why the job card was not issued when the complainant approached the service centre with some defect in the mobile phone.


When the complainant got issued legal notice alleging that he has been facing the problem of mobile phone getting into switched off mode very frequently, both the opposite parties never tried to help him in rectifying the defect. The opposite party No.1 kept quiet. Only before this Forum, the opposite party No.1 came up with the version that the warranty does not cover to the mobile phone as the damage was resulting from liquid. There was an opportunity to opposite party No.1 to deny the plea of the complainant at the time of Ex.A2 and after receipt of legal notice. The plea of liquid damage now taken by the opposite party No.1, in our view, is an after thought. During the course of arguments, the counsel for the complainant submitted that if there is problem with the board the defect cannot be rectified.


The counsel for opposite parties 1 and 2 did not deny the same. The opposite parties 1 and 2 did not also come forward to rectify the defect in the mobile phone. The plea of opposite party No.2 that after selling of the mobile phone they are not liable for any consequences cannot be accepted. The opposite parties failed to get the defect in the mobile phone rectified. Hence, we find that there is deficiency in service on the part of opposite parties 1 and 2 towards the complainant. This point is accordingly answered in favour of the complainant.

13. Point No.2:- In view of our finding on point No.1, the complainant is entitled for replacement of defective mobile phone with a new one. The complainant claimed compensation of Rs.50,000/- for the mental agony and hardship caused to him. There is absolutely no basis for claiming such huge amount towards compensation. In our view, it is just and reasonable to award a sum of Rs.2,000/- towards compensation. The complainant is also entitled to Rs.1,500/- towards costs of the complaint. Hence, we find that the complainant is entitled for replacement of defective mobile phone W5801-Sony Ericsson, IMIE No.359285016155511 with a new one on the complainant surrendering the defective mobile phone and Rs.1,500/- towards costs of the complaint. This point is accordingly answered.

14. Point No.3:- In the result, the complaint is allowed in part directing the opposite parties 1 and 2 to replace the defective mobile phone W5801-Sony Ericsson, IMIE No.359285016155511 with a new one on the complainant surrendering the defective mobile phone, to pay Rs.2,000/- (Rupees two thousand only) towards compensation and to pay Rs.1,500/- (Rupees one thousand five hundred only) towards costs of the complaint to the complainant within six weeks from the date of receipt of copy of order.

Yelugoty Sreedhar,

S/o. Y.Reddaiah,

Flat No.302, 3rd Floor, Sai Suja Apartments,

D.No.9-66/23, New Maruthi Nagar,

Tirupati. … Complainant



And



1. The Manager,

SonyEricssion Authorised Service Centre,

D.No.137A, K.K.Layout,

Tirupati.



2. The Manager,

GOLDEN Plaza,

115, Central Park,

Tirupati. … Opposite parties.






ORDER





This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to replace the defective mobile phone with a new one or in the alternative to refund the sale consideration of Rs.12,000/- along with interest from the date of purchase, to pay compensation of Rs.50,000/- for causing mental agony and hardship and to pay the costs of the complaint to the complainant.

2. The averments of the complaint in brief are :- The complainant purchased W5801-Sony Ericsson, IMIE No.359285016155511 mobile phone from opposite party No.2 retailer for Rs.12,000/- on 20.12.2007. The complainant purchased the mobile phone after being satisfied with the quality and warranty for such mobile phones and upto a period of two months since the purchase the complainant was very much satisfied with the working of the mobile phone. But, subsequently the mobile phone used to went into switched off mode frequently. The complainant had to switch the phone on as and when it went into switched off mode.


The complainant had been reporting the same to opposite party No.1, the authorized service agent and opposite party No.2, the retailer, but they were giving evasive replies. On 13.11.2008 the complainant approached opposite party No.2, who directed him to approach opposite party No.1. The opposite party No.1 for the purpose of servicing the mobile phone received the same from the complainant and returned the same on 17.11.2008 by charging Rs.600/- citing some reasons of replacement of certain part in the mobile phone.


The opposite party No.1 assured that the defect is rectified and there will not be any problem. Unfortunately, the problem with the mobile phone did not get rectified and the complainant has been facing the same problem. The complainant intimated the same to the opposite parties, but they gave reluctant answers. The complainant, who spent Rs.12,000/- for the purchase of mobile phone, is subjected to a lot of mental agony and hardship as the mobile phone falls short of quality and not suitable for use.


The opposite parties are liable to replace the defective mobile phone with a new one as covered by the terms of the opposite parties warranty given on 20.12.2007. The opposite party No.1 is also liable to refund the amount of Rs.600/- taken by them under the guise of rectifying the defect. The opposite party No.2, being the retailer of defective mobile phone is bound to compensate the complainant for selling such defective product. The complainant got issued legal notice to the opposite parties on 21.11.2008 and opposite party No.2 gave reply disclaiming any liability.


The opposite party No.1 neither replied nor complied. Since the period of 3 months from the date of sending legal notice, the complainant had been facing the problem with the mobile phone getting into switched off mode frequently, which caused him lot of hardship by way of loss of work as the nature of his work necessitates himself to be available on the phone to his prospective customers. Because of the defect in the mobile phone the complainant had to loose a suitable portion of his work and that has lead to lot of mental agony to the complainant. Hence the complaint.

3. The opposite parties resisted the complaint. In the counter filed on behalf of opposite party No.1, while denying the allegations made in the complaint, it is inter alia stated that the warranty is valid only if the original proof of purchase issued by a Sony Ericsson authorized dealer and it will cover subject to terms and conditions of the warranty. The complainant approached opposite party No.1 on 17.11.2008 but not on 13.11.2008 and on that day, the opposite party No.1 clearly stated that the phone was dead due to liquid damage and it will not cover the warranty. The opposite party No.1 issued estimation slip on 17.11.2008 estimating the charges of Rs.600/- by mentioning O/W i.e. out of warranty. The complainant suppressed the same and approached this Forum to get wrongful gain. The complainant was not interested to get the mobile repaired. So, he went away without handing-over the mobile.


The damage to the mobile arose due to negligence of the complainant and subsequently the complainant never approached opposite party No.1. Condition No.3 at page No.74 of warranty books reads “This warranty does not cover any failure of the product due to nominal tear and wear, or due to misuse, including but not limited to use in other than the nominal and customary manner, in accordance with the Sony Ericsson instructions for use and maintenance of the product. Nor does this warranty cover any failure of the product due to accident, software or hardware modification or adjustment, acts of God or damage resulting from liquid”. The complainant did not approach this Forum with clean hands.


There is no negligence or deficiency in service on the part of opposite party No.1. The opposite party No.1 is not liable to pay any damages by way of compensation and incidental costs. The complainant unnecessarily dragged the organization to the Court of law and thereby caused much damage to the reputation of the organization for which he is liable for both criminal and civil action. The complaint may be dismissed with exemplary costs for non-joinder of necessary parties.

4. In the objections filed on behalf of opposite party No.2, while denying the material allegations made in the complaint, it is inter alia stated that though the complainant purchased the mobile phone from opposite party No.2, subsequently the opposite party No.2 is not aware of the events that took place as alleged in the complaint. The opposite party No.2 is only a dealer in mobile phones. The warranty and other services that are to be attended to the mobile phone in case of defect have to be done by opposite party No.1. The opposite party No.2 is no way connected to the service centre. It is entirely the province of opposite party No.1. Hence, the opposite party No.2 is not liable to any of the consequences after selling of the mobile phone. The complainant never contacted opposite party No.2 at any time.


It was not brought to the notice of opposite party No.2 about the defects in the mobile prior to issue of notice. The opposite party No.2 did not commit any deficiency in service towards the complainant. If at all there is any warranty, the complainant can avail it from opposite party No.1. The opposite party No.2 is unnecessarily added as party and hence the complaint is bad for non-joinder of parties. The opposite party No.2 is not liable for any damages. Hence the complaint is liable to be dismissed.

5. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A5. Ex.A1 is bill dt:20.12.2007 for Rs.12,000/- issued by opposite party No.2 in the name of the complainant. Ex.A2 is estimation dt:17.11.2008 issued by opposite party No.1. Ex.A3 is office copy of legal notice dt:21.11.2008 got issued by the complainant to the opposite parties. Ex.A4 is reply notice got issued by opposite party No.2 to the advocate for complainant. Ex.A5 is warranty certificate of Sony Ericsson issued by opposite party No.2.

6. In support of the case set up in the counter, the opposite party No.1 filed the booklet containing terms and conditions of the warranty, which is marked as Ex.B1. No documents are, however, filed on behalf of opposite party No.2.

7. On behalf of the complainant and opposite parties 1 and 2 written arguments were filed and we have heard the oral arguments of counsel of both sides.

8. On the basis of pleadings of both sides, the points that arise for determination are:-

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

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

9. Point No.1:- The brief facts of the case are:- The complainant on 20.12.2007 purchased W5801-Sony Ericsson mobile phone from opposite party No.2, who is the retail dealer of Sony Ericsson products for Rs.12,000/-.


The opposite party No.2 issued Ex.A1 bill. The complainant approached opposite party No.1, the authorized service centre of Sony Ericsson complaining for rectifying the defect in the mobile phone. The opposite party No.1 issued Ex.A2 estimation dt:17.11.2008 estimating the cost of some part and service charge at Rs.600/-. The complainant got issued Ex.A3 legal notice to both the opposite parties calling upon them to replace the defective mobile with new one and to pay compensation of Rs.5,000/-. The opposite party No.1 got issued Ex.A4 reply notice stating that he is only a retailer and he is not liable for any of the consequences after the selling of the mobile phone. The complainant filed the complaint on 26.05.2009.

10. The complainant’s case is that since two months after the date of purchase of mobile phone he has been facing the problem of the mobile phone getting into switched off mode frequently, that though he reported the same to opposite parties they never tried to help him by rectifying the defect and that when he approached opposite party No.1, as directed by opposite party No.2, on 13.11.2008 for the purpose of servicing, the phone was returned to him on 17.11.2008 by charging Rs.600/-.


His further case is that even subsequently he has been facing the same problem of mobile phone getting into switched off mode, that when he got issued legal notice to the opposite parties, the opposite party No.2 gave reply disclaiming any liability and opposite party No.1 neither replied nor complied to the notice and that opposite parties 1 and 2, who committed deficiency in service towards him, are liable to replace the defective mobile phone with a new one or in the alternative refund the sale consideration of Rs.12,000/- and pay compensation of Rs.50,000/- for causing mental agony and hardship to him and to pay the costs of the complaint.

11. The case of opposite party No.1 is that when the complainant approached the service centre on 17.11.2008, he was informed that the mobile phone was dead due to liquid damage, that as warranty does not cover damage resulting from liquid, they issued estimation slip estimating the charge for repair at Rs.600/- and that the complainant without handing-over the mobile for repair went away.


The case of opposite party No.2 is that after purchasing the mobile phone the complainant never approached them, that they are only dealers in mobile phones and that in case of defect in the mobile phone, the opposite party No.1 has to rectify the same and that they are not liable for any consequences after the selling of the mobile phone.

12. The complainant adduced evidence by filing his affidavit stating that he has been facing the problem of mobile phone getting into switched off mode frequently and though he has been reporting the same to opposite parties they never tried to get the defect rectified. The complainant also filed 3rd party affidavit of one R.Thulasiram Reddy.


The said Thulasiram Reddy in his affidavit stated that he is a businessman running Cell and Watch shop at Hello Mobiles for the last 11 years, that when the complainant brought his Sony Ericsson mobile phone for repair, he informed him that he cannot attend to the mobile as he is not a authorized person to service such mobiles and that it is his opinion that the said mobile phone is getting switched off automatically because of some problem with the board.


The opposite parties 1 and 2 did not adduce any evidence by filing their affidavits. Admittedly, when the complainant approached opposite party No.1 service centre, the opposite party No.1 issued Ex.A2 estimation. By the date of Ex.A2 estimation the warranty was in force. According to opposite party No.1 the warranty does not cover as the damage was resulting from liquid. In Ex.A1 it is noted “O/W”. The counsel for the opposite party No.1 submitted that O/W indicates “out of warranty”. Ex.A2 shows that for service charge and replacement of part, the opposite party No.1 estimated Rs.600/-. In Ex.A2 it is not noted that the damage to the mobile phone was resulting from liquid.


As the complainant approached opposite party No.1 within the warranty period complaining some defect in the mobile phone, the opposite party No.1 ought to have issued job card mentioning the complaint made by the complainant. There is no explanation from opposite party No.1 why the job card was not issued when the complainant approached the service centre with some defect in the mobile phone. When the complainant got issued legal notice alleging that he has been facing the problem of mobile phone getting into switched off mode very frequently, both the opposite parties never tried to help him in rectifying the defect.


The opposite party No.1 kept quiet. Only before this Forum, the opposite party No.1 came up with the version that the warranty does not cover to the mobile phone as the damage was resulting from liquid. There was an opportunity to opposite party No.1 to deny the plea of the complainant at the time of Ex.A2 and after receipt of legal notice. The plea of liquid damage now taken by the opposite party No.1, in our view, is an after thought. During the course of arguments, the counsel for the complainant submitted that if there is problem with the board the defect cannot be rectified.


The counsel for opposite parties 1 and 2 did not deny the same. The opposite parties 1 and 2 did not also come forward to rectify the defect in the mobile phone. The plea of opposite party No.2 that after selling of the mobile phone they are not liable for any consequences cannot be accepted. The opposite parties failed to get the defect in the mobile phone rectified. Hence, we find that there is deficiency in service on the part of opposite parties 1 and 2 towards the complainant. This point is accordingly answered in favour of the complainant.

13. Point No.2:- In view of our finding on point No.1, the complainant is entitled for replacement of defective mobile phone with a new one. The complainant claimed compensation of Rs.50,000/- for the mental agony and hardship caused to him. There is absolutely no basis for claiming such huge amount towards compensation. In our view, it is just and reasonable to award a sum of Rs.2,000/- towards compensation.


The complainant is also entitled to Rs.1,500/- towards costs of the complaint. Hence, we find that the complainant is entitled for replacement of defective mobile phone W5801-Sony Ericsson, IMIE No.359285016155511 with a new one on the complainant surrendering the defective mobile phone and Rs.1,500/- towards costs of the complaint. This point is accordingly answered.

Yelugoty Sreedhar,

S/o. Y.Reddaiah,

Flat No.302, 3rd Floor, Sai Suja Apartments,

D.No.9-66/23, New Maruthi Nagar,

Tirupati. … Complainant



And



1. The Manager,

Sony Ericssion Authorised Service Centre,

D.No.137A, K.K.Layout,

Tirupati.



2. The Manager,

GOLDEN Plaza,

115, Central Park,

Tirupati. … Opposite parties.







ORDER



This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to replace the defective mobile phone with a new one or in the alternative to refund the sale consideration of Rs.12,000/- along with interest from the date of purchase, to pay compensation of Rs.50,000/- for causing mental agony and hardship and to pay the costs of the complaint to the complainant.

2. The averments of the complaint in brief are :- The complainant purchased W5801-Sony Ericsson, IMIE No.359285016155511 mobile phone from opposite party No.2 retailer for Rs.12,000/- on 20.12.2007. The complainant purchased the mobile phone after being satisfied with the quality and warranty for such mobile phones and upto a period of two months since the purchase the complainant was very much satisfied with the working of the mobile phone. But, subsequently the mobile phone used to went into switched off mode frequently. The complainant had to switch the phone on as and when it went into switched off mode. The complainant had been reporting the same to opposite party No.1, the authorized service agent and opposite party No.2, the retailer, but they were giving evasive replies. On 13.11.2008 the complainant approached opposite party No.2, who directed him to approach opposite party No.1.


The opposite party No.1 for the purpose of servicing the mobile phone received the same from the complainant and returned the same on 17.11.2008 by charging Rs.600/- citing some reasons of replacement of certain part in the mobile phone. The opposite party No.1 assured that the defect is rectified and there will not be any problem. Unfortunately, the problem with the mobile phone did not get rectified and the complainant has been facing the same problem. The complainant intimated the same to the opposite parties, but they gave reluctant answers. The complainant, who spent Rs.12,000/- for the purchase of mobile phone, is subjected to a lot of mental agony and hardship as the mobile phone falls short of quality and not suitable for use.


The opposite parties are liable to replace the defective mobile phone with a new one as covered by the terms of the opposite parties warranty given on 20.12.2007. The opposite party No.1 is also liable to refund the amount of Rs.600/- taken by them under the guise of rectifying the defect. The opposite party No.2, being the retailer of defective mobile phone is bound to compensate the complainant for selling such defective product. The complainant got issued legal notice to the opposite parties on 21.11.2008 and opposite party No.2 gave reply disclaiming any liability.


The opposite party No.1 neither replied nor complied. Since the period of 3 months from the date of sending legal notice, the complainant had been facing the problem with the mobile phone getting into switched off mode frequently, which caused him lot of hardship by way of loss of work as the nature of his work necessitates himself to be available on the phone to his prospective customers. Because of the defect in the mobile phone the complainant had to loose a suitable portion of his work and that has lead to lot of mental agony to the complainant. Hence the complaint.

3. The opposite parties resisted the complaint. In the counter filed on behalf of opposite party No.1, while denying the allegations made in the complaint, it is inter alia stated that the warranty is valid only if the original proof of purchase issued by a Sony Ericsson authorized dealer and it will cover subject to terms and conditions of the warranty.


The complainant approached opposite party No.1 on 17.11.2008 but not on 13.11.2008 and on that day, the opposite party No.1 clearly stated that the phone was dead due to liquid damage and it will not cover the warranty. The opposite party No.1 issued estimation slip on 17.11.2008 estimating the charges of Rs.600/- by mentioning O/W i.e. out of warranty. The complainant suppressed the same and approached this Forum to get wrongful gain. The complainant was not interested to get the mobile repaired. So, he went away without handing-over the mobile.


The damage to the mobile arose due to negligence of the complainant and subsequently the complainant never approached opposite party No.1. Condition No.3 at page No.74 of warranty books reads “This warranty does not cover any failure of the product due to nominal tear and wear, or due to misuse, including but not limited to use in other than the nominal and customary manner, in accordance with the Sony Ericsson instructions for use and maintenance of the product. Nor does this warranty cover any failure of the product due to accident, software or hardware modification or adjustment, acts of God or damage resulting from liquid”.


The complainant did not approach this Forum with clean hands. There is no negligence or deficiency in service on the part of opposite party No.1. The opposite party No.1 is not liable to pay any damages by way of compensation and incidental costs. The complainant unnecessarily dragged the organization to the Court of law and thereby caused much damage to the reputation of the organization for which he is liable for both criminal and civil action. The complaint may be dismissed with exemplary costs for non-joinder of necessary parties.

4. In the objections filed on behalf of opposite party No.2, while denying the material allegations made in the complaint, it is inter alia stated that though the complainant purchased the mobile phone from opposite party No.2, subsequently the opposite party No.2 is not aware of the events that took place as alleged in the complaint. The opposite party No.2 is only a dealer in mobile phones. The warranty and other services that are to be attended to the mobile phone in case of defect have to be done by opposite party No.1. The opposite party No.2 is no way connected to the service centre. It is entirely the province of opposite party No.1. Hence, the opposite party No.2 is not liable to any of the consequences after selling of the mobile phone. The complainant never contacted opposite party No.2 at any time.


It was not brought to the notice of opposite party No.2 about the defects in the mobile prior to issue of notice. The opposite party No.2 did not commit any deficiency in service towards the complainant. If at all there is any warranty, the complainant can avail it from opposite party No.1. The opposite party No.2 is unnecessarily added as party and hence the complaint is bad for non-joinder of parties. The opposite party No.2 is not liable for any damages. Hence the complaint is liable to be dismissed.

5. In support of the averments made in the complaint, the complainant filed his affidavit and got marked Exs. A1 to A5. Ex.A1 is bill dt:20.12.2007 for Rs.12,000/- issued by opposite party No.2 in the name of the complainant. Ex.A2 is estimation dt:17.11.2008 issued by opposite party No.1. Ex.A3 is office copy of legal notice dt:21.11.2008 got issued by the complainant to the opposite parties. Ex.A4 is reply notice got issued by opposite party No.2 to the advocate for complainant. Ex.A5 is warranty certificate of Sony Ericsson issued by opposite party No.2.

6. In support of the case set up in the counter, the opposite party No.1 filed the booklet containing terms and conditions of the warranty, which is marked as Ex.B1. No documents are, however, filed on behalf of opposite party No.2.

7. On behalf of the complainant and opposite parties 1 and 2 written arguments were filed and we have heard the oral arguments of counsel of both sides.

8. On the basis of pleadings of both sides, the points that arise for determination are:-

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

2. Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?

3. To what result?

9. Point No.1:- The brief facts of the case are:- The complainant on 20.12.2007 purchased W5801-Sony Ericsson mobile phone from opposite party No.2, who is the retail dealer of Sony Ericsson products for Rs.12,000/-. The opposite party No.2 issued Ex.A1 bill. The complainant approached opposite party No.1, the authorized service centre of Sony Ericsson complaining for rectifying the defect in the mobile phone.


The opposite party No.1 issued Ex.A2 estimation dt:17.11.2008 estimating the cost of some part and service charge at Rs.600/-. The complainant got issued Ex.A3 legal notice to both the opposite parties calling upon them to replace the defective mobile with new one and to pay compensation of Rs.5,000/-. The opposite party No.1 got issued Ex.A4 reply notice stating that he is only a retailer and he is not liable for any of the consequences after the selling of the mobile phone. The complainant filed the complaint on 26.05.2009.

10. The complainant’s case is that since two months after the date of purchase of mobile phone he has been facing the problem of the mobile phone getting into switched off mode frequently, that though he reported the same to opposite parties they never tried to help him by rectifying the defect and that when he approached opposite party No.1, as directed by opposite party No.2, on 13.11.2008 for the purpose of servicing, the phone was returned to him on 17.11.2008 by charging Rs.600/-.


His further case is that even subsequently he has been facing the same problem of mobile phone getting into switched off mode, that when he got issued legal notice to the opposite parties, the opposite party No.2 gave reply disclaiming any liability and opposite party No.1 neither replied nor complied to the notice and that opposite parties 1 and 2, who committed deficiency in service towards him, are liable to replace the defective mobile phone with a new one or in the alternative refund the sale consideration of Rs.12,000/- and pay compensation of Rs.50,000/- for causing mental agony and hardship to him and to pay the costs of the complaint.

11. The case of opposite party No.1 is that when the complainant approached the service centre on 17.11.2008, he was informed that the mobile phone was dead due to liquid damage, that as warranty does not cover damage resulting from liquid, they issued estimation slip estimating the charge for repair at Rs.600/- and that the complainant without handing-over the mobile for repair went away. The case of opposite party No.2 is that after purchasing the mobile phone the complainant never approached them, that they are only dealers in mobile phones and that in case of defect in the mobile phone, the opposite party No.1 has to rectify the same and that they are not liable for any consequences after the selling of the mobile phone.

12. The complainant adduced evidence by filing his affidavit stating that he has been facing the problem of mobile phone getting into switched off mode frequently and though he has been reporting the same to opposite parties they never tried to get the defect rectified. The complainant also filed 3rd party affidavit of one R.Thulasiram Reddy. The said Thulasiram Reddy in his affidavit stated that he is a businessman running Cell and Watch shop at Hello Mobiles for the last 11 years, that when the complainant brought his Sony Ericsson mobile phone for repair, he informed him that he cannot attend to the mobile as he is not a authorized person to service such mobiles and that it is his opinion that the said mobile phone is getting switched off automatically because of some problem with the board.


The opposite parties 1 and 2 did not adduce any evidence by filing their affidavits. Admittedly, when the complainant approached opposite party No.1 service centre, the opposite party No.1 issued Ex.A2 estimation. By the date of Ex.A2 estimation the warranty was in force. According to opposite party No.1 the warranty does not cover as the damage was resulting from liquid. In Ex.A1 it is noted “O/W”. The counsel for the opposite party No.1 submitted that O/W indicates “out of warranty”. Ex.A2 shows that for service charge and replacement of part, the opposite party No.1 estimated Rs.600/-. In Ex.A2 it is not noted that the damage to the mobile phone was resulting from liquid.


As the complainant approached opposite party No.1 within the warranty period complaining some defect in the mobile phone, the opposite party No.1 ought to have issued job card mentioning the complaint made by the complainant. There is no explanation from opposite party No.1 why the job card was not issued when the complainant approached the service centre with some defect in the mobile phone. When the complainant got issued legal notice alleging that he has been facing the problem of mobile phone getting into switched off mode very frequently, both the opposite parties never tried to help him in rectifying the defect.


The opposite party No.1 kept quiet. Only before this Forum, the opposite party No.1 came up with the version that the warranty does not cover to the mobile phone as the damage was resulting from liquid. There was an opportunity to opposite party No.1 to deny the plea of the complainant at the time of Ex.A2 and after receipt of legal notice. The plea of liquid damage now taken by the opposite party No.1, in our view, is an after thought. During the course of arguments, the counsel for the complainant submitted that if there is problem with the board the defect cannot be rectified.


The counsel for opposite parties 1 and 2 did not deny the same. The opposite parties 1 and 2 did not also come forward to rectify the defect in the mobile phone. The plea of opposite party No.2 that after selling of the mobile phone they are not liable for any consequences cannot be accepted. The opposite parties failed to get the defect in the mobile phone rectified. Hence, we find that there is deficiency in service on the part of opposite parties 1 and 2 towards the complainant. This point is accordingly answered in favour of the complainant.

13. Point No.2:- In view of our finding on point No.1, the complainant is entitled for replacement of defective mobile phone with a new one. The complainant claimed compensation of Rs.50,000/- for the mental agony and hardship caused to him. There is absolutely no basis for claiming such huge amount towards compensation. In our view, it is just and reasonable to award a sum of Rs.2,000/- towards compensation.


The complainant is also entitled to Rs.1,500/- towards costs of the complaint. Hence, we find that the complainant is entitled for replacement of defective mobile phone W5801-Sony Ericsson, IMIE No.359285016155511 with a new one on the complainant surrendering the defective mobile phone and Rs.1,500/- towards costs of the complaint. This point is accordingly answered.

Pratibha Singh W/o Sh. Sukhpal Singh R/O Opp. Diet Building, Near Ranital, Nahan, Distt. Sirmour, H.P. presently working in Carrier Academy, Shamsherpur, Paonta Sahib, Distt. Sirmaur.



… Complainant.

Versus



1. Kunal Communication, Naya Bazaar, Nahan,

Distt. Sirmour H.P. through its Authorized Signatory.

(Authorized Dealer of Sony Ericcson).



2. Sony Ericsson Mobile Communication ( India)

Pvt. Ltd., 4th Floor, dacha house, 18/17, WEA Karol

Bagh, New Delhi-110005 through its Autorized

Signatory.

Opposite Parties.







O R D E R:




This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that she purchased a Sony Ericsson mobile hand set , from the OP No.1, vide bill bearing No.1794, on, 02.11.2008, for a sale consideration of Rs.10,000/-. She further avers that the aforesaid hand set was having problem in the battery backup from the very beginning, hence, she brought the said defect to the notice of the OP No.1, who told her that the set had to be sent to OP No.2 for service and after service, by the OP No.2, when the set was put to use, it did not function.


The complainant again sent the handset to the service station of the OP No.2, on, 20.04.2009, and when she received back the set, she found the mobile hand set badly mishandled and tampered with, hence did not function. Hence, it is averred that there is apparent deficiency in service on the part of the OPs, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The notice of this complaint, was issued to the OPs, by way of registered letter, but the OPs did not prefer to put in appearance before this Forum, hence, the OPs were ordered to be proceeded against exparte, vide zimni order dated 10.09.2009.

3. We have heard the learned counsel for the complainant and have thoroughly scanned the entire record of the case.

4. The complainant in support of his claim, as asserted in the complaint, has placed reliance on Annexure-C-1, which proves the fact of her having purchased the mobile hand set, from the OP No.1, for a sale consideration of Rs.10,000/-. Annexures C-2 & C-3 are the copies of service in relation to the mobile hand set issued by the authorized service centre, which proves the fact that the mobile hand set was having problem of display pro, & LCD, hinge and bonzer of the set was replaced, but, even then the defect persists. In addition to this, the complainant has also sworn an affidavit in support of the complaint.


The allegation as contained in the complaint, has remained un-repulsed and un-benumbed, on behalf of the OPs, as, the OPs did not prefer to contest the complaint, despite valid service through registered postal, hence, the only conclusion, which sprouts from the aforesaid, is, that the OP No.1 had sold a defective mobile handset to the complainant, which started giving problem, from the very beginning, hence, the OPs by selling a defective mobile hand set to the complainant, has not only committed deficiency in service, but, has also indulged in an unfair trade practice.

5. Consequently, we allow this complaint and direct the OPs as under:-



i) That the OPs shall refund a sum of Rs.10,000/- to the complainant;



ii) That the aforesaid amount of Rs.10,000/- shall also, carry interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 16.07.2009, till actual payment is made;



iii) That the OPs, shall also pay a sum of Rs.1000/-, as cost of litigation to the complainant;



iv) That the OPs shall jointly and severally, comply with this order, within a period of forty five days, after the date of receipt of copy of this order;



6. The learned counsel for the complainant undertook to collect the certified copy of this order from the office, free of cost, as per rules, and since the OPs have not contested the complaint, as such, office is directed to sent a certified copy of this order to the OPs through UPC for compliance forthwith. The file after due completion, be consigned to record room.

: i am akshay from rohtak . my brother manish buy phone sonyericson w760i in march 2009 . i have problem in camera after few months . my phone camera do not work. i deposit my phone in service center at rohtak situated on chottu ram chowk on 17 september 2009. they said that the phone is coming in 20 days. after 20 days the phone is come with camera problem solved but there are another two problem come which are tight sliding and back button do not work. they said me that they solve these problem till the next day. i go to them on next day and they told me that the phone is again sent to company.today is about 45 days and they postponed the date when i go to them:D.

imei no.354799026475409
work order no.-SE309SSM10465

B.R.Karthik Chandra,

No.371, 1st ‘E’ Cross,

6th Block, II Phase,

Banashankari II Stage,

Bangalore – 560 085.

…. Complainant

V/s



01. The Proprietor,

Big Complaint Mobiles Pvt. Ltd.,

No.19, 80 feet Road, 3rd Stage,

Banashankari, Srinivasanagar,

Bangalore – 560 085.



02. The Managing Director,

Sony Ericson,

Sofora International Ltd.,

Complaint-52, 2nd Phase, Noida,

Uttarpradesh.



03. The Proprietor,

Service Point,

No.652, 11th Main,

Jayanagar, 4th Block,

Bangalore – 11.

…. Opposite Parties





-: ORDER:-



The complainant has prayed for a direction to the Opposite Parties to replace the defective Sony Ericson Mobile Handset with a new one and to pay compensation of Rs.10,000/- and costs of Rs.2,000/-, on the following grounds:-



2. The complainant purchased a new W 580i Sony Ericson Mobile Handset for Rs.11,850/- on 09/12/2007 from Opposite Party No.1. The warranty card was issued by the Opposite Parties. He used the handset in accordance with the instructions contained in the user’s manual. In the last week of August-2008 the handset started getting problem of disturbance at the time of conversation. As per the instruction of Opposite Party No.1, the handset was handed over to Opposite Party No.3 on 01/09/2008. The handset was returned on 04/09/2008 informing that the boncer felex was replaced and the software was updated. On 05/09/2008 the handset had the same problems and therefore it was given back to the service center for repairs.

The handset was returned on 07/09/2008 stating that it has been repaired and at that time no acknowledgment was given. Again on 12/09/2008 the handset was given to the service center for the same problem and it was returned on 22/09/2008 saying that the R.F.Board has been repaired. Since the handset had the same problem he contacted Opposite Party No.1. On inspection of the handset, Opposite Party No.1 also noticed the same problem. As per the request the handset was left with Opposite Party No.1 for the purpose of giving a quotation for repairs. Opposite Party No.1 returned the handset on 29/09/2008 stating that it would cost Rs.2800/- for repairs. On the same day, the handset was given to service center stating it was not repaired properly. After checking the handset, the service center informed that the display was changed and duplicate display was installed and therefore the handset cannot be repaired free of cost.

Immediately the complainant contacted Opposite Party No.1 asked about changing of the display and requested to repair the same. Since the Opposite Parties failed to take any action to repair or replace the handset, he issued legal notice dated 02/01/2009 calling upon the Opposite Party to replace the handset within 15 days from the date of receipt of the notice. But the Opposite Parties failed to take any action. Since the problem in the handset was within the warranty period, the Opposite Party is liable to repair or replace the handset. The act of the Opposite Parties in not doing so amounts to deficiency in service and the same caused mental tension. The complainant has been losing his money and time for securing replacement of the handset without any result. Hence, the complaint.



3. In spite of service of notice, Opposite Party Nos. 1 & 2 have remained absent. Opposite Party No.3 has filed the version contending as under:-

The complainant visited the service center on 01/09/2008 and again visited within a couple of week with the same complaint. They tried to convince the complainant that there is no problem with the testing sim and there may be problem with the network provider or in the sim card. But the complainant could not be convinced. He demanded for replacement of the handset. However, by replacing new RF Board (motherboard) with a new IMEI number, the handset was delivered back on 22/09/2008.

The complainant visited the service center on 29/09/2008 with a new complaint of blank display. But they found that there were some damages and duplicate display was fixed. Therefore, they rejected service stating that as per the terms and conditions, the product cannot be serviced within the warranty. The complainant collected the handset without submitting it for service. As per the terms and conditions of warranty, the product should not be damaged with any liquid, physical damaged, tampered or serviced with any other service center. The handset was serviced with one of the unauthorized service center and was tampered by using duplicate spares. The new complaint can be serviced as out of warranty. Thus, there is no deficiency in service on the part of Opposite Party No.3.

4. In support of the claim, the complainant has filed his affidavit. Except filing the version Opposite Party No.3 has not adduced any evidence. We have heard the arguments on both side.



5. The points for consideration are:-

1. Whether the complainant has proved the deficiency in service on the part of Opposite Parties?



2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No.(1) : In the Affirmative

As against O.P. No.1

Point No.(2) : As per final order,

for the following:-

-:REASONS:-

7. The fact that the complainant purchased a Mobile Handset on 09/12/2007 from Opposite Party No.1 is evident from the cash bill dated 09/12/2007 issued by Opposite Party No.1. From the copy of the delivery challan dated 04/09/2008 it is seen that Opposite Party No.3 had effected repairs to the handset by replacing the boncer felex and updating the software. The job works sheet dated 22/09/2008 issued by Opposite Party No.1 makes it clear that on that day the complainant had handed over the Mobile handset to Opposite Party No.1 complaining disturbance in out going and incoming calls and display is shaking.

It is also endorsed on this job works sheet that the Mobile handset is not repaired and the same was handed over to the complainant. It is also the contention of the complainant that after Opposite Party No.3 returned the Mobile Handset on 22/09/2008 replacing the RF board, the same problems were noticed in the Handset and therefore it was handed over to Opposite Party No.1. It is contended that on 29/09/2008 Opposite Party No.1 returned the Handset stating that it would cost around Rs.2,800/- for repairs and on the same day he handed over the handset to Opposite Party No.3 stating that the handset is not properly repaired and thereupon Opposite Party No.3 checked the handset and returned back stating that the duplicate display has been installed. This fact is evident from the delivery challan dated 29/09/2008 issued by Opposite Party No.3.

This fact remains that the handset was delivered to Opposite Party No.1 on 22/09/2008 for repairs and Opposite Party No.1 returned the handset on 29/09/2008, giving estimation for repairs and on the same day the complainant handed over the handset to Opposite Party No.3 for repairs who on inspection found that the display has been replaced with duplicate. As such the duplicate display was installed in the handset between 22/09/2008 and 29/09/2008 when the handset was in the possession of Opposite Party No.1. Therefore it implied that it is Opposite Party No.1 who changed the original display and installed a duplicate display. Since Opposite Party No.1 has remained absent, this inference has remained un-rebutted. According to Opposite Party No.3 the repairs with regard to the installation of duplicate display was by an unauthorized service center namely Opposite Party No.1. If Opposite Party No.1 was not the authorized service center for the Mobile handset manufactured by Sony Ericson, it had no authority to effect repairs to the handset and to install a duplicate display.

For this unauthorized act, Opposite Party No.1 becomes liable to replace the handset with a new handset of the same model. Since Opposite Party No.3 effected repairs on two occasions by replacing certain parts and refused service on 29/09/2008 on account installation of duplicate display by an unauthorized service center, no liability for replacement of the handset can be fixed either on Opposite Party No.2 or Opposite Party No.3. Therefore, we hold that the act of Opposite Party No.1 in installing duplicate display amounts not only to deficiency in service but also to unfair trade practice. Therefore, Opposite Party No.1 alone is liable to replace the handset with a new one. In the result, we pass the following:-



-:ORDER:-



1. The complaint is ALLOWED against Opposite Party No.1 and dismissed against Opposite Party Nos.2 & 3.

2. Opposite Party No.1 is directed to replace the handset purchased by the complainant with a new defect free handset of the same model and to pay costs of Rs.2,000/-. (Rs.Two Thousand only)

3. Compliance of this order shall be made within 08 (eight) weeks from the date of communication.

Pushparaj, 14/35-A,Anna Nagar,SRSI Road,

Karamadai, Mettupalayam TK, Coimbatore- --- Complainant

Vs.

1. M/s. Sony Ericssion Mobile Communications (I)(P) Ltd.,

rep.by M.D., 4th floor, Dakha House,

New Delhi 110 005

2. M/s.Universal Telecommunications (I)Pvt.Ltd.

rep.by its Branch Manager,100 feet road,

Gandhipuram, Coimbatore-12.

3. M/s.Universal Telecommunications (I)Pvt.Ltd.

rep.by its Regional Manager,

29, Royapettah High Road,Chennai-14. -- Opposite Parties



This case coming on for final hearing before us on 21.10.09 in the presence of Thiru M.Richard, Advocate for complainant and of M/s.A.Vijayakumar, P.Saravanan and R.Gobi, Advocates for opposite parties 2 and 3 and the 1st opposite party remained absent and set exparte and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to replace jointly severally the above defective handset by supplying a new one, to pay Rs.50,000/0 as compensation for mental agony and to pay Rs.5000 towards costs.

The averments in the complaint are as follows:

1. The 1st opposite party is the manufacturer of Sony Ericssion Mobile Handsets. The 2nd opposite party is the dealer in sales of the above mobiles. The complainant had approached the 2nd opposite party for purchase of a mobile handset. The complainant was convinced by the representations/assurances made by the sales manager of the 2nd opposite party with respect to the functions of the handset and its after-service facilities, purchased the W 910-I model handset from the 2nd opposite party for Rs.15,300 under invoice dt.6.7.08. The handset was working properly only for 5 to 6 months without any problems. Sometime later, the handset had failed to function. Whenever the complainant had started charging the handset it automatically got switched off and became dead the result of which the handset could not be charged/used. Hence the complainant had approached the 2nd opposite party for redressal of the above complaint in his handset. The 2nd opposite party had informed the complainant that they are only the dealers in sale of mobile handsets and the defects could be rectified only in the service centres. The 2nd opposite party had also advised the complainant to approach the service centres situated at R.S.Puram/Dr.Nanjappa Road, Coimbatore town.

2. The complainant approached the Sony Ericssion Service centre at R.S.Puram, Coimbatore wherein he was informed after inspection that the particular spare part required for rectifying the mistake was not available with them. They hence advised the complainant to approach for doing the needful the other service centre at Dr.Nanjappa road, Coimbatore town. Thus the handset was subsequently placed before the service centre at Dr.Nanjappa road on 27.2.09. The complainant’s complaint was registered on 27.2.09 and the handset was received for carrying out repairs. Later it was informed that they could not rectify the defect and that the problem would be referred to the Regional office ie. the 3rd opposite party for doing the needful. Thus the complainant was advised to wait for a week’s time. Later on, the handset was returned to the complainant stating that the problem was solved. The very next day, when the complainant had started charging the handset it again got switched off and became dead. The complainant was quite shocked and surprised to see the recurring defect in the handset. Hence the complainant had again approached the service was still persisting. The service centre had again registered the complaint and received back the handset for getting the repairs done. However to his shock and surprise, the handset which was retained for the 2nd time for almost 12 days finally returned to the complainant with note in the delivery chalan that “after replacing and observing the same problem persisting Therefore returning without service”. The complainant was informed that the handset could not be repaired on account of manufactural defect and the only possible remedy is to return the handset to the company and get a new one. Thus the complainant was advised to approach the 1st opposite party for replacement.

3. The complainant was constrained to cause legal notice dt.20.5.09 calling upon all the opposite parties to replace jointly/severally the above defective handset by supplying a new one to the complainant. All the opposite parties received the legal notice. However they neither replied for the notice nor complied with the demand made therein. Thus all the three opposite parties are liable to compensate the complainant in terms of money for the mental agony and business loss suffered by him. Hence this complaint.

The averments in the counter of 2nd and 3rd opposite parties are as follows:

4. The 2nd and 3rd opposite parties is only the retailer of mobile phone and not the manufacturer. The 2nd opposite party admits that it sold the Sony Ericssion Mobile phone model W 920-I on 6.7.08 to the complainant for a sum of Rs.15,300 with good condition the same was accepted by the complainant along with bill and warranty issued by the manufacturer namely the Sony Ericssion company. The mobile phone will be replaced by the Sony Ericssion company only if there is a manufacturing defect and manufacturing defects will have to be scrutinized by the service engineer. If they identify it is a manufacturing defect the same will be replaced. The complainant had not handed over mobile phone to the authorized service centre to rectify it.

5. If the customers report about the defect of the mobile and if they request for replacement from the manufacturing company the same will be taken and it will be forwarded to the concerned manufacturing company. The 2nd and 3rd opposite parties not liable to make any compensation or it is not authorized to replace the mobile phone.

6. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A7 was marked and the opposite parties remained absent and set exparte.



The point for consideration is

Whether the opposite parties have committed deficiency in service? If so to what relief the complainant is entitled to?





ISSUE 1

7. The 1st opposite party is the manufacturer of Sony Ericssion Mobile Handsets. The 2nd opposite party is the dealer and the 3rd opposite party is the Regional office at Chennai are all admitted. The purchase of Sony Ericssion Mobile Model W 920-1 by the complainant on 6.7.08 and the warranty issued by the manufacturer are also admitted. The contention of the opposite parties is that the mobile phone will be replaced by the Sony Ericssion company only if there is a manufacturing defect and that defect will have to be scrutinized by the service engineers. If they identify then only the same will be replaced, but in the present case the complainant has not handed over the mobile phone to the authorized service centre for rectification.

8. As per the advice of the 2nd opposite party the complainant approached the service centre at R.S.Puram, Coimbatore and as per their advice the handset was finally handed over to the service centre at Dr.Nanjappa Road on 27.2.09. The handset was returned to the complainant after rectification, the very next day the same problem continued and handset was once again given to the service centre at Dr.Nanjappa Road and after 10 days the same was returned with a note “after replacing and observing the same problem persisting Therefore returning without service”. This delivery challan is marked as Ex.A2. Hence the complainant has proved that the handset is a defective one and there is a manufacturing defect.

9. The handset was purchased on 6.7.08 the warranty period expires on 5.7.09the present complaint was registered by the complainant on 27.2.09witht he 1st opposite party well within the warranty period.

10. The 1st opposite party being the manufacturer is responsible to set right the defect through its service centre and in case of manufacturing defect to replace the same by supplying a new handset. From Ex.A2 the delivery challan issued by the service centre of the 1st opposite party it is evident that the mistake could not be rectify hence the 1st opposite party is bound to take a defective handset sold and give a new one. Hence all the opposite parties are equally responsible for the transaction made by the 2nd opposite party. They jointly and severally liable for the replacement of the handset as well as for other claim.

11. The 2nd and 3rd opposite parties would contend that the handset was not handed over to the authorized service centre. But this is not correct. As directed by the 2nd opposite party the complainant approached the service centre at R.S.Puram, but they failed to carry out the repair. As a seller the 2nd opposite party is duty bound to attend the grievance of the consumers. The consumers cannot directly approach the manufacturer without the help of seller. Even after coming to know that the handset is a defective one the 2nd opposite party has not so far taken any steps for replacement. The 2nd and 3rd opposite parties cannot disown their responsibility. For the act of deficient service rendered by the 2nd opposite party the other opposite parties No.1 and 3 are also liable to compensate the loss. Hence all the opposite parties are jointly and severally liable to replace the handset sold by supplying a new one and also liable to pay compensation to the complainant.

12. In the result, we direct the opposite parties to replace jointly severally the above defective handset by supplying a new one, to pay jointly severally to the complainant a sum of Rs..20,000 as compensation for mental agony and to pay cost of Rs.1000/-to the complainant within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Sony Ericsson
Subject : Unsatisfied with the repair done by Sony Ericsson Service Centre
I Niteshwar Sood bought a phone W350i on 25-08-2008. From the purchasing date I was facing hardware problem many times which are as follows:
Model : Sony Ericsson W350i
IMEI : 355865023550012
Purchase Date: 25-08-2008
1st complaint—Phone is Dead 15-11-2008, 3:07 pm
Service centre: Salora International Ltd. Chandigarh, Sec-34
Job Sheet No.—SES08CHD23346
Delivery Date: 29-11-2008, With 3 months extended warranty (due to new mother board)
With new IMEI—354388028768605
2nd Complaint—System Connector Problem 22-08-2009
Service centre : RT Chandigarh, SCO 23, Sec-18D
Job Sheet No. – SE309RTC12585
New job Sheet prepared without any notification on 01-09-2009, 10:38am
Job Sheet No. SE309RTC12981
Delivery date : 19-09-2009, 4:18pm
With New IMEI : 354173034772563 {With 3 months extended warranty (due to new mother board)}
After repairing Problem arise after few days:
1. Flip does not work
2. Keys 4,7,8 does not work
3. Phone’s body was not closed properly. (one screw was missing)
4. Phone dead on 16-10-2009
New Complaint—Phone Dead 24-10-2009
Service centre : RT Chandigarh, SCO 23, Sec-18D
Job Sheet No. : SE309RTC15079
I am fed up with this phone due to its improper functioning. Being a student I don’t have enough time and money to repair this phone. As it is on warranty period but I have spend a lot of money to repair the phone (Bus fare). Every week they call me to take my phone back, but when I reached there, they always says Sorry. I am not satisfied and not happy on buying this product. Also service provided by service centre makes me frustrated. I have also mail complaints on Sony Ericsson site. On toll free number there is also a complaint launch by me whose complaint ID is 85084618. But not any proper action taken by anyone. I think its all in vain. I also mail to sony ericsson, but always get one reply by them, that your complaint is forwrded, but still no action is taken by them. Still today 4-11-2009, i does not get my phoneback. As this set is repaired by them again and again and i cant feel that again they provide me satisfactiry service. M fed up of this cellphone and service. Can someone help me…………….

Niteshwar Sood
Phone No. 09417864834 (P.P.)
Email : nsood719@gmail.com