Haryana

Panchkula

CC/92/2016

SHAILENDER KUMAR MAURYA. - Complainant(s)

Versus

AJAY ENTERPRISES & OTHERS. - Opp.Party(s)

AJAY BALI

09 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                                                                                     

Consumer Complaint No	:	92 of 2016
Date of Institution	:	25.04.2016
Date of Decision	:	09.12.2016

                                                                                          

Mr. Shailender Kumar Maurya, R/o House No. 563, Adarsh Nagar, Mauli Jagran, Chandigarh.

                                                                                                ….Complainant

Versus

 

1. Ajay Enterprises Booth No. 11, Sector 11, Panchkula, through its proprietor.
2. Rai & Sons SCO No. 60, Sector 47-C, Chandigarh through its partner.
3. Sony India Private Ltd. A-31, Mohan Cooperative Indl. Estate, Mathura Road, New Delhi. 110044 (India), through its Managing Director.

…. Opposite parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                            

For the Parties:     Mr. Ajay Bali, for the complainant.

                             Mr. Deepak Sharma, Advocate, for the Ops.

ORDER

(Dharmapal, President)

1. Shailender Kumar Maurya-complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 with the averments that on 11.08.2015, he purchased a Sony mobile phone for a total sum of Rs. 21,299/-, through installment. First day of purchase, the mobile phone, started giving problem as hanging and hotted. On 23.01.2016, the complainant contacted OP No. 2 i.e authorized service center apprised about the problem in the mobile. The official of OP No. 2 issued a job card to the complainant. The OP No. 2 did not repair the mobile phone till the filing of the complaint. The mobile phone was under warranty, therefore, the Ops are responsible to repair the same. After one month of the purchase of the mobile handset started giving problem and the complainant went to the office of OP No. 2 many times with the problem of mobile set and every time OP No. 2 kept the handset with the assurance that the problem would be removed but every time the mobile set was returned to the complainant without removing the problems but even after that when the complainant received the mobile set the problem was as it was and till date the same was not rectified by the OP No. 2. The complainant sent a legal notice dated 17.03.2016 to the Ops, but to no avail. This act and conduct on the part of the Ops amounts to deficiency in service. Hence, this complaint.
2. The Ops appeared and filed written statement by taking some preliminary objections and submitted that the Op No.3 is a Company incorporated under the provisions of Companies Act, 1956 and having its registered office at A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044. It is submitted that the Op No.2 is the authorized service center of Op No.3 and the Op No.1 is the authorized dealer of Op No.3. It is submitted that the complainant purchased one Sony Xperia M4/E2363 with IMEI No.352198073242808 on 11.08.2015 from OP No.1 after a detailed demonstration of the features, functions, applications alongwith the detailed explanation of all the warranty terms and conditions of the mobile. It is submitted that Op No.3 provided a limited warranty of one year on its products from the time of its original purchase and the liability strictly lies in accordance with the terms and conditions of the warranty provided by it and could not held liable for the claims falling outside the scope of warranty. The relevant terms of warranty provided by the Op No.3 is as under:-

“Subject to the conditions of this limited warranty, Sony warrants this product to be free from defects in design,

 material and workmanship at the time of original purchase by a Consumer, and for a subsequent period of One (1) year, which is the warranty period.”………

“If, during the warranty period this product fails to operate under normal use and service, due to defects in materials or workmanship, the Sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein.”

It is submitted that the Clause 3 of the terms of warranty provided by the OP No.3 clearly states that:-

“This warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the Product. Nor does this warranty cover any failure of the product due to accident, modification or adjustment, acts of God or damage resulting from liquid.”

It is submitted that on 23.12.2015 i.e after passing four months, the complainant approached the Op No.2 raising an issue with the flash light of the mobile handset and the OP No.2 after inspecting the handset observed that the issue was only related to software updated which was updated and the mobile phone was delivered to the complainant. It is submitted that nothing was charged from the complainant for upgrading the software. The complainant again approached the Op No.2 on 18.01.2016 raising an issue of “phone cant power on”.  The Op No.2 after inspection observed that the condition of the handset was not good, there were scratches on the handset but also the OP No. 2 replaced the Board of the handset as well as the battery free of cost. It is submitted that the complainant never contacted OP for any other issue with respect to the handset. The Ops did their best and provided timely solution to the complainant and the handset was delivered to the complainant in a proper working condition. The complainant instead of appreciating the efforts made by the OPs in resolving the issue, preferred to file the present complaint before this Forum. It is denied that the complainant approached the OP no. 2 many times and no solution was given to him.   Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of the complaint with costs.

3. The complainant tendered the evidence by way of affidavit Annexure    C-A alongwith documents Annexure C-1 to C-5 and closed the evidence. On the other hand, counsel for the Ops tendered the evidence by way of affidavit Annexure OP-A alongwith documents Annexure R-1 to R-3 and closed the evidence.
4. We have heard learned counsel for the parties and have also perused the record carefully and minutely and also considered the written arguments submitted by OPs.
5. It is evident from the retail invoice (Annexure C-1) dated 11.08.2015, the complainant purchased Sony Xperia M4/E2363 with IMEI No. 3521980703242808 and 352198073242816 dated 11.08.2015 for a sum of Rs.21,299/-. But after one month of its purchase, the hand set started giving problem and it was taken to the service center i.e Op No.2 on 23.01.2016 alleging a problem of hanging and hotted and the OP No. 2 issued a Job Sheet No. RS5/FY16-01/0000277 (Annexure C-2) with remarks “No Power, Heating, Others” and the Op No.2 updated the software. The complainant again visited the OP no. 2 on 28.07.2016 (Annexure C-5) who issued job sheet dated 28.07.2016 with remarks scratchy, “Restarting, Others, as per customer no power MIC not good”. The grievance of the complainant is that the Ops failed to rectify the defects in the mobile hand set as against it, the Op No.2 maintained that the mobile was inspected and software was upgraded. However, the Ops have not produced any cogent, convincing and reliable evidence in support of this contention. In the absence of any documentary proof that facts, pleading of the Ops are hollow and devoid of any merit. The self serving affidavit of Ops is not sufficient to prove the said fact.
6. Evidently the complainant had spent the money for the purchase of brand new mobile handset to facilitate himself but not for moving the service center and then this Forum for justice in the absence of proper service provided by the Ops. Even the defects in the mobile phone after few days of its purchase, makes pointer towards the poor quality of the product. The complainant has been deprived of possession of the mobile handset. Thus, there is deficiency in service on the part of the Ops.
7. It is pertinent to notice that the precise affidavit-supported averment made by the complainant with regard to the service of a Legal Notice on his behalf upon Ops, has not been rebutted in the course of the written statement filed by Ops. Even otherwise, the averment aforementioned is supported by the postal receipts Annexure C-4 which evidence that the Legal Notice had been forwarded to the Ops (all of them) by Speed-Post. It is the non-furnishing of a response by the Ops which impelled the complainant to file this complaint.
8. It would also require pertinent notice that in the course of the affidavit Annexure OP/A, the deponent has neither averred having himself repaired the handset under reference nor has he averred that the handset had been repaired by any particular official. That affidavit is also not averred to be based upon information derived from documentation maintained in the ordinary course of business by the Ops. As against it, affidavit dated 13.10.2016 which also is on record (though not exhibited), the deponent has categorically averred that it is he only who, as Mobile Service Engineer of OP No. 2, had inspected the mobile. Both these affidavits were sworn by Mr. Satbir Singh S/o (late) Mr. Raj Kartar Singh (available at SCO-60, Sector-47 C, Chandigarh). If the un-exhibited is ignored from consideration, the Ops case is supported by the other affidavit i.e dated 19.10.2016 (Annexure OP/A) which does not indicate the identity of the Mobile Service Engineer who inspected or repaired the mobile handset. In that manner, the evidence adduced by Ops is legally flawed.
9. In the light of above observations, we are of the considered opinion that the Ops are found deficient in not giving proper services to the complainant. Hence, the present complaint deserves to succeed against the Ops and the same is allowed. The Ops are jointly and severely directed as under:-
   1. To refund the amount of Rs. 21,299/- as cost of the mobile handset to the complainant along with interest @ 9% per annum from the date of purchase.  
   2. To pay Rs.5,000/- to the complainant towards compensation for mental agony, physical harassment.
   3. To pay Rs.5,000/- to the complainant towards cost of litigation.
10. This order shall be complied with by the Ops jointly and severely within a period of 30 days from the date of receipt of certified copy of the order. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

Announced

09.12.2016               ANITA KAPOOR          DHARAM PAL

                                    MEMBER                    PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                          

                                                     DHARAM PAL 

                                                     PRESIDENT