CC No.753/2016

Filed on:25.05.2016

Disposed on:13.11.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 13^th DAY OF NOVEMBER 2017

CONSUMER COMPLAINT NO.753/2016

PRESENT:

 Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

         PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                       MEMBER

                                    V/S

ORDER

BY SMT.L.MAMATHA, MEMBER

1. This Complaint was filed by the Complainant on 25.05.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to refund Rs.32,945/- with interest and further direct the Opposite Parties to pay Rs.2,00,000/- as compensation and cost of the litigation.   

2. The brief facts of the complaint as under:

In the complaint, the Complainant alleges that the           2^nd Complainant had purchased Sony Xperia Z1 mobile from Opposite Party No.2 by paying Rs.32,945/- on 03.09.2014.  The Complainant faced lot of problem in camera within 2 months from the date of purchase.  So gave it to Sony service center at Davangere.  They took 15 days to resolve the problem, but after that too it was working not satisfactory.  One day it suddenly got switch off and it was not getting charge nor even getting on.  The 2^nd Complainant gave it to the same service center at Davangere, they told it was not in warranty period, after asking them do for pay repair they agreed and sent mobile to Delhi Service Center.  They called after 2 and half month and said it will cost around 8000 to repair, and they don’t have guarantee it will work well.  So the 2^nd Complainant took back mobile.  As in invoice it is mentioned that 1 Year extended warranty is there by Sangeetha Mobile Private Limited.  The Complainant No.1 is uncle of Complainant No.2 took mobile from 1^st Complainant and was thinking of gave it in Bangalore, because here registered office is there so seeking well and fast service from them.  The Complainant No.1 gave that mobile to Opposite Party No.3 on 09.03.2016.  After lot of argument they took mobile and they told they will send it to main branch, they will send it to service center and informed Complainants that they will get call from them within 2-3 days and they will tell status about the mobile.  But the Complainants didn’t get any call from the service centre.  The Complainants waited 7 days, after that the Complainant No.1 went to Opposite Party No.3.  And asked about mobile, they told they already sent, their work finished there, if the Complainants want to know about their mobile they only call and ask the person through phone number mentioned it in job sheet.  After lot of argument they told to Complainant No.1 to come within 6 p.m.  The Complainant No.1 agreed and went, next day before 6 p.m, they called in front of Complainant No.1 and asked about his mobile and told Complainant No.1 that wait 21 days because minimum 21 days they will take to repair.  Once it get repair Opposite Parties only call Complainants.  The Complainants waited for 21 days no one called.  So Complainant No.1 called to the number which is given in Job Sheet.  The Complainant No.1 called Opposite Party No.1 and discussed few points.  The Opposite Party No.1 told that it is not repairable and beyond economical repair so they will provide Z2 mobile as a swap handset.  Z1 mobile stock is not there, they checked all possibilities, and that production also stopped.  So they swap Z2 mobile.  The Complainant No.1 asked Sony Z3 mobile.  Because both Sony Z2 and Sony Z3 mobile have same specification, and Sony Z2 software performance is not good, for sure again he will face problem.  But Opposite Party No.1 told that they cannot give Z3 Mobile, its cost is more, and Complainants have to pay extra money for that.  When Complainants asked for Z1 only paid 33000/-, so Z3 mobile cost is less than that, so he can give.  After lot of argument the Opposite Party No.1 told they will repair the mobile, so the Complainants have no choice agreed for that and Opposite Party told that it requires 7 days to repair.  The Complainants waited 7 days.  But no response from them and he mailed requesting to resolve the issues.  But not responded and for 2^nd mail they replied.  But till now problem not solved.     Hence, this complaint.

3. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their version.  In the version pleaded that the Complaint is not maintainable.  It is further submits that Opposite Party No.1 to Opposite Party No.3 M/s Sangeetha Mobiles Private Limited is a Private Limited Company dealing in sales of various kinds of mobile handsets of various Manufactures through its network of 260+outlets situated Across Karnataka, Tamilnadu, Andhra Pradesh, Delhi Pondicherry and Uttar Pradesh States having its Head Office at B.S.K. 2^nd Stage Bangalore.  The averments made in the complaint that the 2^nd Complainant has purchased Sony Xperia Z1 mobile handset of M/s Sony India Private Limited.  Who is not erred as a party in the complaint bearing IMEI No.358094056626501 on 03.09.2014 from the Opposite Party’s one of the outlet situated at No.12H, Sri.Muruga Rajendra Complex, Hadadi Road, Davangere.  Further, the Opposite Parties are doing the role as a Facilitator and this Opposite Parties are permitted only to sell the mobile sets without opening the seal of the sealed container box as a retailer including the Sony mobile hands manufactured by M/s Sony India Private Limited who is not erred as an Opposite Party in the complaint and hence the said M/s.Sony Mobile India Private Limited is only responsible for all the defects arisen out of the mobile set.  This is clearly mentioned in the manual book as well as in the Invoice given by this Opposite Parties at the time of sale of the mobile set to Complainant.  It is submitted that eventually this Opposite Parties have taken due care of the Complainant after purchase of the mobile set from this Opposite Parties even though all the above conditions are applicable, immediately after he Complainant reported about the faults to be want directly to the authorized service centre of the M/s Sony India Private Limited, who is not erred as party in the above complaint even though it is a necessary party to the complaint and as the authorized serviced center of the Manufacturer it is responsible to provide service to the customers including to the Complainant and if the authorized service centre has failed to provide services to the Complainant, this Opposite Party is not responsible for the same and the manufacturer i.e., M/s Sony India Private Limited, who is not erred as Opposite Party in the complaint and its authorized service center who is also not erred as Opposite Party in the complaint where the mobile hand set was purported to be given for service have to be pulled up and this is the fact also and further as on a request this Opposite Party has taken the mobile set for repairs and sent the same to the authorized service center on behalf of the Complainant but the authorized service person has told that the mobile set is having a manufacturing defect and this was communicated frankly to the Complainant and asked the Complainant for a swap of the mobile set with another mobile set and the difference amount has to be paid by the Complainant but the Complainant is not inclined to it, further looking into above aspects this Opposite Parties have taken utmost care in attending to the Complainant and there is no deficiency of service on the part of this Opposite Parties rendered to the Complainant and the one alleged in the complaint is made just to make a ground to file this complaint.  Hence, prays to dismiss the complaint.  

4. The Complainant No.1 Sri.Venkatesh S.T. filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Vijay Singh has been filed.  Heard the arguments of both the parties.

5.  The points that arise for consideration are:-

1. Whether the Complainants have proved the alleged deficiency in service by the Opposite Parties ?

2. If so, to what relief the Complainants are entitled?

6.  Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:-  As looking into the averments of the Complainants and also version filed by the Opposite Parties, it is not in dispute that the 2^nd Complainant purchased Sony XPERIA Z1 mobile handset on 03.09.2014 from 2^nd Opposite Party by paying Rs.32,945/- within 2 months from the date of purchase Complainants faced lot of problem in camera.  So gave it to Sony service center at Davangere for repair.  They took 15 days to resolve the problem.  After that it was working not satisfactory.  When mobile got problem again like switched off and it was not getting charge nor even getting on.  Again gave it to service centre.  But they told that it was not in warranty period and asking them to do for pay repair.  Service centre agreed and send it to Delhi Service Centre.  They called the Complainants after 2 and half month and said that it cost Rs.8000/- to repair.  So the Complainants took back the mobile.  As in Invoice it is mentioned that 1 Year warranty is there by Sangeetha Mobiles Private Limited.  So on 09.03.2016, the Complainant No.1 approached 3^rd Opposite Party.  This fact is supported by Job Sheet issued by Opposite Party No.3.  But mobile was not repaired.  The Complainant asked Opposite Party No.1 to replace the mobile.  But the Opposite Party No.1 is not ready to give Sony Z3 instead they are ready to give Z2.   But the Complainant refused Z2 mobile because Z2 mobiles software performance is not good.  The 1^st Complainant asked if Z1 is not in stock then deliver the Z3 set.  Both Z1 and Z3 mobile have same specification.  But Opposite Parties not agreed to give Z3 mobile because its cost is more.  But the Complainant’s Z1 mobile cost is higher Z3 mobile.  Evenafter many mail communications and request personally by the Complainants, the Opposite Parties never bothered replace the mobile.  Finally the Complainant No.1 mailed to Opposite Parties.  The Opposite Party No.1 replied the mail that he will swap Z1 or Z2.  But till today they are not fulfill the demand of the Complainant.

8. The defence of the Opposite Parties are that the complaint is not maintainable. It is true that 2^nd Complainant purchased SONY XPERIA Z1 mobile handset from Opposite Party No.2.  But the Complainant not made the Manufacturer as party.  The Opposite Parties are doing the role as a Facilitator and this Opposite Parties are permitted only to sell the mobile sets without opening the seal of the sealed container box as a retailer.  Under those circumstances the Opposite Parties had not replace the mobile.  In support of his defence Sri.Vijay Singh has filed his affidavit.  In his sworn testimony, he reiterated the same, but except the interested version and affidavit of Sri.Vijay Singh, the Opposite Parties have not furnished any supporting evidence. Though the manufacturer warranty period lapsed, the Sangeetha’s 1 year extended warranty period still in existence.  This fact is very clear by booking into Invoice issued by the Opposite Parties.  In that it is clearly mentioned Sangeetha’s 1 Year extended warranty i.e., Opposite Parties as a Dealer given 1 Year extended warranty.  Thereby, it is not proper to accept the defence taken by the Opposite Parties.  The learned Counsel for Opposite Parties argued that the question of either replacing or repair the mobile by free of cost is not possible.  Because there is no warranty period.  Thereby, there is no deficiency of service on the part of the Opposite Parties.

9. On the other hand, the Complainant argued that the 2^nd Complainant purchased mobile from Opposite Party No.2 and they give 1 Year extended warranty i.e., Sangeetha’s 1 Year extended warranty.  The Opposite Parties received the mobile from Complainants for repair.  But till today they neither repaired nor replace the mobile.  This is purely amounts to deficiency of service to the consumer. 

10. With this arguments no doubut the Complainant faced many problem from this mobile, though there is extended 1 Year warranty issued by the Opposite Parties, they are not ready either to repair or replace.  Though the Opposite Parties are dealer it is their duty to either to repair mobile with free of cost or replace the mobile, since Opposite Parties have given their 1 Year extended warranty.  This fact is supported by Invoice given by the Opposite Parties.  This clearly shows that there is deficiency of service on the part of the Opposite Parties, as a result Complainant has got mental agony.  Thereby, it clearly goes to show that the act of the Opposite Parties are amounts to deficiency of service.  Hence, this point is held in the affirmative.

ORDER

The complaint is allowed holding that there is deficiency of service on the part of the Opposite Parties.

The Opposite Parties are directed to refund Rs.32,945/- along with interest at 18% p.a. interest  from the date of payment till the date of realization. 

The Opposite Parties are further directed to pay a sum of Rs.50,000/- as compensation to the Complainant for causing mental agony. 

The Opposite Parties are further directed to pay a sum of Rs.5,000/-towards cost of this litigation to the Complainant.

The Opposite Parties are granted 45 days from the date of this order.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 13^th day of November 2017)

        MEMBER                                          PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Venkatesh, S.T., who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Copy of Invoice dt.03.09.2014.
2. Copy of Service Job Sheet dt.09.03.2016
3. Copy of Reminder Letter
4. Copy of postal acknowledgements
5. Copy of email correspondences dt.15.04.2016, 16.04.2016, 29.04.2016, 02.05.2016 and 21.05.2016.

Witness examined on behalf of the Opposite Parties:-

1. Sri.Vijay Singh, Manager Customer Suppo0rt and Authorized Representative of the Opposite Party No.1 by way of affidavit.

List of documents filed by the Opposite Party:

                             Nil

MEMBER                                                             PRESIDENT