IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Hon’ble Mr. Bose Augustine, President
Hon’ble Mr. K.N. Radhakrishnan, Member
Hon’ble Mrs. Renu P. Gopalan, Member
CC No. 193/14
Tuesday the 17th day of November, 2015
Petitioner : Tony Joseph,
Karippaparambil House,
Manarcad PO, Kottayam.
(Adv. M.C. Suresh)
Vs
Opposite parties : 1) Sony Center,
Kuruvithadam Agencies Pvt.Ltd,
Logos Center, Sasthri Road,
Kottayam-2
2) Sony India Pvt.Ltd.,
A-31, 2nd Floor,
Mohan Co-operative Industrial
Estate, Mathura Road, New Delhi.
(Adv. Ajithan Nampoothiri)
O R D E R
Hon’ble Mr. Bose Augustine, President
The case of the complainant filed on 31/5/14 is as follows.
The complainant purchased a C6802/XPERIA Z ULTRA mobile phone, manufactured by the 2nd opposite party, from the 1st opposite party by paying Rs.45,000/-. According to the complainant he had purchased the said mobile phone on believing the representation made by the 1st opposite party and the advertisement of the 2nd opposite party that the said mobile phone is a water proof phone, which can be used for taking photos and videos under water. And also they made representation that the said mobile phone is having one year replacement warranty. According to the complainant on 13-4-14 while travelling in bike, during rain he was keeping the phone safely in his pocket with its flaps shut. But on examination it was found that the said mobile phone become switch off (the phone is switched off condition) and it did not turn on. Then on 14-4-14 the complainant informed the said defect to the 1st opposite party and as per the direction of the 1st opposite party he had entrusted the phone with the ‘Madona Care Center’ Kanjikuzhy, the authorized service center of the 2nd opposite party. After inspection of the phone the technician of the service center informed that the damage is due to liquid ingression. And also informed that the mobile phone could be replaced after getting approval from the 2nd opposite party and asked to wait for some days since the defect occurred during warranty period. But the opposite parties has not cared to replace the phone. And on 3-5-14 the service center of the 2nd opposite party offered a new phone of the same description with 20% discount, so that complainant should pay an amount of Rs.36,000/- for the new phone. According to the complainant the defect is within warranty period and he is legally entitled to get replacement with a new one of the same description with extended warranty. And the act of opposite parties publishing deceitful advertisement and fraudulent representation for promoting sale and denying warranty for defective products amounts to unfair trade practice and deficiency in service. Hence this complaint.
Evenafter accepting the notice 1st opposite party has not cared to appear or file version.
Second opposite party filed version admitting the purchase of the mobile phone by the complainant and its one year warranty. According to the 2nd opposite party they had proved ‘User Guide’, which mentioned the precautions taken by the complainant, while using the phone and if a person does not comply the same, the 2nd opposite party is not liable for any damage / defect in the product. The mobile handset has been certified by international bodies for certain standards relating to water and dust resistance. According to the 2nd opposite party as per clause 3 of the terms and conditions of the warranty, any failure in the product arising out of damage caused by ingress of liquid would render the normal warranty void. So the opposite parties are not liable to prove free of cost service or replacement. According to the 2nd opposite party the complainant has used the handset for more than seven months without any problems. On inspection of the handset by the representative of the authorized service center of the 2nd opposite party it is found that the handset was damaged by ingress of liquid. And it was informed to the complainant that in cases of damage by ingress of liquid renders the warranty void as per the clause 3 of the warranty. According to the 2nd opposite party internal damage caused by liquid is due to negligence of the complainant. The opposite parties are never claimed, the handset to be water proof. And this complaint is vexatious, baseless and 2nd opposite party prayed for dismissal of the complaint.
Points for considerations are:
- Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
- Relief and costs?
Evidence in this case consists of the proof affidavit of the complainant and 2nd opposite party. And Ext.A1 to A4 documents from the side of the complainant and Ext.B1 to B3 documents from the side of 2nd opposite party.
Point No.1
The complainant’s case is that his newly purchased mobile phone manufactured by the 2nd opposite party become defective during the warranty period. Opposite party has not replace the phone as per the warranty. Complainant produced the service job sheet and the same is marked as Ext.A3. In Ext.A3 the complaint is stated as ‘no power’. The condition of the set is shown as damaged (liquid ingression). According to the complainant the water entered during his journey on 13-4-14 when he keep the phone safely in his pocket within its flap shut. According to the opposite party even though the phone was within warranty period, any defect to the product due to accident, modification or adjustment, act of good or damage resulting from liquid the warranty become void. In our view the said contention taken by the opposite party is not sustainable because opposite party in their advertisement has stated that the disputed type of phone is water proof. In Ext.A2 is the copy of the advertisement given by the opposite party. In Ext.A2 it is stated that with the aid of the phone, pictures can be taken while swimming in fresh water for upto 30 minutes. Consumer can even dive upto 1.5 meters with it. In our view the contention taken by the opposite party that we are not liable to replace the defective phone is not sustainable. Admittedly the phone was purchased on 26-8-13 for Rs.45,000/- and the defect occurred on 13-4-14, ie within warranty period. So opposite party is liable to replace the defective phone or else refund the price of the phone. In our view there is deficiency in service on the part of opposite parties in not redressing the complaint of the complainant. Point No.1 is found accordingly.
Point No.2
In view of the findings in Point No.1 complaint is allowed.
In the result
- The opposite parties are ordered to replace the mobile phone with a brand new one having same features or refund Rs.45,000/- the price of the mobile phone to the complainant.
- The opposite parties are ordered to pay Rs.5000/- as compensation to the complainant.
- The opposite parties are ordered to pay Rs.5000/- as this litigation cost to the complainant.
The Order shall be complied with within 30 days from the date of receipt of a copy of the order. If not complied as directed the award amount will carry 15% interest from the date of order till realization.
Pronounced in the Open Forum on this the 17th day of November, 2015.
Hon’ble Mr. Bose Augustine, President Sd/-
Hon’ble Mr. K.N. Radhakrishnan, Member Sd/-
Hon’ble Mrs. Renu P. Gopalan, Member Sd/-
Appendix
Documents for the petitioner
Ext.A1-Bill dated 26/8/13 for Rs.45,000/-
Ext.A2-Series of photocopy of print out of the advertisement published by the
2nd OP(4 Nos.)
Ext.A3-Photocopy of service job sheet dtd 14/4/2014
Ext.A4- Series of copy of print out of the e-mail communications (2 Nos)
Documents for the opposite party
Ext.B1-Photocopy of Board resolution annexure
Ext.B2-Copy of the warranty terms provided by the OP.2
Ext.B3-Copy of important information
By Order,
Senior Superintendent.
