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.  201/2014

Saturday, the 27^th day of February 2016.

Petitioner                                  :         Jayesh Kumar,

                                                          S/o. Sivaraman Nair,

                                                          Raj Nivas, Kanakkary Village,

                                                          Pattithanam Post Office, 

                                                          Kottayam.  Kerala.

                                                          (Adv. K. Vinod Kumar)

                                                                   Vs.

Opposite Parties                        :    1) Sony India Private Limited,

                                                          A-31, Mohan Co-operative Industrial

                                                          Estate, Mathura Road,

                                                          New Delhi – 110044.

                                                       2) Proprietor, 

                                                           Bharath Time Gallery

                                                          T.B. Road, Kottayam.

                                                      3)  Manager,

                                                          Madonna Care Centre, Sony

                                                          Authorized Service Centre, D No. XIV/54,                                                             Thekkekkuttu Buildings,  K.K. Road,                                                                     Kanjikkuzhi, Kottayam – 686 004.

O  R  D  E  R

Hon’ble Mr. Bose Augustine, President

            The case of the complainant filed on 06/06/2014 is as follows.

          The complainant on 20/07/2013 purchased a Sony XPERIA Z C6602 from the second opposite party, manufacturing  by the 1^st opposite party for Rs.35,000/-.  According to the complainant, he had purchased the said phone only on believing the advertisements published by the 1^st opposite party through the news papers, television, magazines etc that XPERIA Z C6602 mobile phone is water and dust resistant.  It is specifically stated in the start up guide supplied along with mobile phone that “your device has IP (Ingress protection) rating of IP 5X IP5 X and IPX7.  This means that the device is dust protected and protected against the effects of immersion in water in depth of between 0 to 100 cm. for up to 30 minutes, and is also protected against the effects of a low pressure water stream”.  According to the complainant during rain water is entered in the phone, its touch was not working and the data’s stored in the phone are also lost. The complainant entrusted the phone to the 3^rd opposite party, the authorised service centre, the 1^st opposite party, on 03/03/2014.  According to the complainant since water entered in the phone, it is not working, the opposite patties are also bound to replace the phone instead of repairing it.  But the 3^rd opposite party instead of issuing a new phone, opened it and dried the parts and sent back the same to other places for further examination.  And the 3^rd opposite party demanded 70% of the price of phone for supplying a new one.  According to the complainant for several times, he approached the 3^rd opposite party for get back the phone or to get a new phone

instead of old phone.  But the 3^rd opposite party refused to do so.  So the complainant contacted to the 1^st opposite party through E-mails and on 14/04/2014, 1^st opposite party replied through E-mail that they are not ready to repair or replace the mobile handset, they are ready to give a new one with 20% discount on price. The total discount offered by them is Rs.6,198/- and the price of the new unit is fixed as Rs.30,990/-.  After a long period, the 3^rd opposite party handed over the phone to the complainant.  According to the complainant, the act of opposite parties in selling an inferior quality of mobile phone, amounts to unfair trade practice.  Hence this complaint.

          Opposite parties filed version admitting the purchase of the mobile phone by the complainant.  According to the opposite parties, he had purchased the said phone after a detailed demonstration of the features, functions, applications and after satisfying himself with the condition of the handset.  1^st opposite party provided warranty of one year on its product and the liability is in accordance with the terms and conditions of warranty.  And opposite parties are not liable for the claims falling outside the scope of warranty.  According to the opposite parties, they had provide ‘User Guide’ along with the handset, which mentions the

precautions one should take while using the phone, and if a person does not comply with the same then the opposite parties are not liable for any damage /

defect in the product.  On examination of the mobile phone by the service person of the 3^rd opposite party, it was found that the damage is due to external cause of liquid ingression. Definite evidence of liquid entry was found and therefore the complainant was informed that the handset cannot be repaired within the warranty terms.  According to the opposite parties, the 1^st opposite party had published the advertisements in the newspapers and Television claiming that the phone is ‘water and dust resistance’.  But it has never been stated in any of the advertisement that the said phone is waterproof.  Furthermore, in this case, the terms and conditions of the normal warranty has been rendered void due to damage resulting from ingression of liquid and therefore there is no liability from the part of opposite parties.  In case of external damage, the opposite parties exchange the phones of the customers that are still within warranty period at a discount price.  But the complainant was rejected the offer of exchange the handset on 20% discount price.  According to the opposite parties, there is no deficiency in service or unfair trade practice on the part of opposite parties and they prayed for dismissal of the complaint with their cost.

Points for considerations are

1. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
2. Relief and costs?

          Evidence in this case consists of the Proof affidavit of both sides.  And Ext.A₁ to A₄ documents from the side of the complainant and Ext.B1 to B5 documents from the side of opposite parties.

Point No.1

          The crux of the complainant’s case is that his smart mobile phone, manufactured by the opposite party purchased from the 2^nd opposite party become defective due to entering of water during rain.  According to the complainant, 1^st opposite party give wide publicity with declaration stating that the product is water and dust resistant.  Complainant produced copy of the 1^st page of the start-up guide issued by the 1^st opposite party and the same is marked as Ext.A₁.  In Ext.A₁, it is stated that the product is dust protected and protected against the effect of immersion in water in depths of between 0 to 100 cms for upto 30 minutes and is also protected against the effect of a low pressure water stream.  Complainant produced copy of the service job sheet and the same is marked as Ext.A₄.                           In Ext.A₄, the condition of the set is shown as water insertion in phone.  The complaint shown is touch not working.  According to the opposite party, the complainant has not used the devise as provided in the User Guide.  Admittedly water was entered in to the smart phone.  The phone was purchased on 20/07/2013 for the price of Rs.35,000/- from the 2^nd opposite party.  From Ext.A4, it can be seen that the device was entrusted to the 3^rd opposite party on 03/03/2014.  Admittedly the complaint were shown within the warranty period.  In our view, the entering of water in a water resistant smart phone amounts to an imperfection, shortcoming in the quality of assurance given by the service provider and amounts to deficiency in service and unfair trade practice.  Point No.1 found accordingly.

Point No.2

          In view of the finding in Point No.1, complaint is allowed.

In the result,

1. The opposite parties are ordered to replace the Sony XPERIA Z C6602, water resistant mobile phone to the complainant or refund Rs.35,000/- the price of the phone to the complainant.
2. On replacing the defective phone with a new one, the complainant is directed to handover the defective phone to the opposite parties.
3. Opposite parties are ordered to pay Rs.3,000/- as compensation to the complainant.
4. Opposite parties are ordered to pay Rs.2,000/- as cost of this litigation to the complainant.

Order shall be complied with within a period of 30 days from the date of Order.

          Pronounced in the Open Forum on this the 27^th day of February, 2016.

          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 of petitioner

Ext.A1  :  Photocopy of startup guide supplied by op.

Ext.A2  :  Photocopy of invoice 3368 issued by 2^nd opposite party

Ext.A3  : Printout of e-mail communication

Ext.A4  :  Photocopy of service job-sheet.

Documents of opposite party

Ext.B1  :  Photocopy of resolution dtd.07/02/14 passed by Sony India Pvt. Ltd.

Ext.B2  :  Photocopy of letter dtd.14/07/2014 issued by 3^rd op.

Ext.B3  :  Photocopy of warranty terms.

Ext.B4  :  Photocopy of user guide

Ext.B5  :  Photocopy of job sheet (Technical Evaluation Form)

                                                                                                By Order              

                                                                                      Senior Superintendent