DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 1472/2015
Date of Institution : 24.11.2015
Date of Decision : 12.10.2016
Kulwant Kaur aged about years wife of Shri Jagjot Singh son of Shri Late Harvinderbir Singh C/o Shri Harwinder Singh resident of House No. 1, K.C. Road, Street No. 2, Barnala. …Complainant
Versus
1. Sony India Pvt. Ltd., A-31, Mohan Co-operative Institutional Estate, Mathur Road, New Delhi through its Managing Director/Proprietor.
2. M/s Mukesh Telecom (Sony Authorized Service Centr12e), Ram Bagh Road, Opposite CRPF Office, Barnala through its proprietor Mr. Mukesh Singla.
3. R.K. Traders, 22 Acre, Barnala through its partners (i) Piyush Goyal @ Pushi and (ii) Himanshu Goal alias Hunny.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. BS Giani counsel for the complainant.
Sh. Gurpreet Singh counsel for Opposite Party No. 1
Opposite party No. 2 exparte
Sh. NK Singla counsel for opposite party No. 3.
Quorum.-
1. Shri S.K. Goel : President.
2. Shri Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Kulwant Kaur (hereinafter referred as complainant) has filed the present complaint under Consumer Protection Act, 1986 (hereinafter referred as Act) against Sony India Pvt. Ltd. opposite party No. 1, M/s Mukesh Telecom opposite party No. 2 and R.K. Traders opposite party No. 3 (hereinafter referred as opposite parties).
2. The facts leading to the present complaint are that the complainant purchased one Xperia Z Ultra mobile phone No. 9872191480 from opposite party No. 3 vide invoice No. 439 dated 16.8.2015. It is alleged that at that time when sim card was installed in the said mobile by the opposite party No. 3, the said mobile did not work properly. However, opposite party No. 3 assured the complainant that the same will work properly after some hours when it would be updated. After 2/3 days the complainant complained to opposite party No. 3 as the mobile do not work properly but opposite party No. 3 advised to change her sim card. Even, after changing the sim card the said mobile phone did not work properly. Thereafter, the opposite party No. 3 advised the complainant to approach the opposite party No. 2. On approaching the opposite party No. 2 the complainant was asked to deposit the mobile phone and was further told that the said mobile would be repaired after about 15 days through the company. Even, the opposite party No. 2 was not ready to make a job card for the said mobile. It is further alleged that on 31.8.2015 again the complainant approached opposite party No. 3 and requested to replace the same with new one having no such defect but the opposite party No. 3 refused to replace the said defective mobile. Thereafter, the complainant served a legal notice upon opposite party No. 3 through her counsel but to no effect. Thus, it is alleged that it is a case of deficiency in service and unfair trade practice on the part of the opposite parties. Therefore, the present complaint is filed seeking the following reliefs.-
1) To replace the defective mobile phone with a new one having no such defect.
2) To pay Rs. 80,000/- as compensation and Rs. 20,000/- as litigation expenses.
3. Upon notice of this complaint the opposite party No. 1 filed a separate written version taking preliminary objections on the ground that there is no cause of action as well as deficiency in service against the opposite parties. It is further submitted that the complainant purchased one Sony Xperia Z Ultra/C6802 handset for Rs. 16,300/- on 16.8.2015 from the opposite party No. 1. The opposite party No. 1 has provided a limited warranty of one year from its original purchase. It is further submitted that its liability lies in accordance with the terms and conditions of the warranty. It is further submitted that the complainant approached with some issue in the handset but the complainant was not ready to deposit the handset even for inspection. It is further submitted that without inspecting the handset it was difficult for the opposite party to know about the defect in the mobile phone. It is further submitted that if the issue with handset occurred due to the complainant's own fault then the handset is not covered under warranty terms. Moreover, the complainant has failed to establish that there is any inherent defect in the said handset. No material has been placed on record to show that the handset is having some manufacturing defect. It is also submitted that the opposite parties have tried to figure out the details of service history upon receiving the notice but failed to trace any work order details or any service details which means that the aforesaid handset was ever being repaired by the opposite party. Even, in the notice the IMEI number was not mentioned despite that the opposite party tried their best to trace out the details but no such details were available with the opposite party. Moreover, the opposite party No. 1 has specifically communicated to the complainant vide letter dated 23.12.2015 regretting for not accepting the request for the replacement of the handset but the complainant never responded the said letter. They also denied the other allegations of the complainant and finally prayed for the dismissal of the complaint.
4. Upon notice, the opposite party No. 2 has not appeared despite service and therefore, the opposite party No. 2 was proceeded against exparte.
5. The opposite party No. 3 also filed separate written version taking legal objections on the ground of locus standi, maintainability, jurisdiction, non joinder and mis joinder of necessary parties, estoppal and concealment of material facts. On merits, it is submitted that the complainant purchased the mobile set in question and she was explained about the terms and conditions printed out on the invoice. However, the answering opposite party denied that the complainant ever approached the opposite party for any replacement of the handset. They have also denied any mental agony to the complainant and any deficiency in service on their part. It is also submitted that the legal notice sent by the complainant was duly replied and finally prayed for the dismissal of the complaint.
6. In order to prove her case, the complainant has tendered into evidence her own affidavit Ex.C-1, affidavit of Jagjot Singh Ex.C-2, copy of bill Ex.C-3, copy of box Ex.C-4 to Ex.C-6, copy of notice Ex.C-7, postal receipt Ex.C-8 and closed the evidence.
7. To rebut the case of the complainant the opposite party No. 1 has tendered into evidence copy of authority letter Ex.OP-1/1, copy of bill dated 6.12.2014 Ex.OP-1/2, copy of warranty terms Ex.OP-1/3, copy of letter dated 29.12.2015 Ex.OP-1/4, affidavit of Priyank Chauhan Ex.OP-1/5 and closed the evidence. Further, opposite party No. 3 tendered into evidence affidavit of Piyush Goyal Ex.OP-3/1, copy of invoice Ex.OP-3/2, copy of reply to notice Ex.OP-3/3 and closed the evidence.
8. We have heard the learned counsel for the parties and have gone through all the record on the file carefully.
9. The point is to be determined whether the mobile in question is having manufacturing defect and therefore it is liable to be replaced with a new one or to refund the price of the said mobile. In order to prove that the said mobile has a manufacturing defect, the complainant has placed on record her affidavit Ex.C-1 wherein the complainant has reiterated her case as mentioned in the complaint. Apart from her affidavit the complainant has also placed affidavit of her husband Jagjot Singh Ex.C-2 which is also on the same lines. To support her plea that she is a consumer, the complainant has placed on record invoice Ex.C-3 of the said mobile showing that the mobile in question is purchased from opposite party No. 3 for Rs. 16,300/-. Ex.C-4 is the printed cover indicating some terms and conditions. Ex.C-5 and Ex.C-6 are the copies of the screen shots. Ex.C-7 is the legal notice issued by the Advocate of the complainant to the opposite party No. 3. On the basis of the above said evidence, the learned counsel for the complainant has contended that the mobile in question is having a manufacturing defect and therefore the same is liable to be replaced with a new one or the opposite parties may be directed to refund the price of the said mobile alongwith compensation.
10. On the other hand, the opposite party No. 1 in their written version has specifically mentioned that the complainant had failed to place on record any material evidence proving that the handset is having some manufacturing defect. Similarly, the opposite party No. 3 from whom the complainant purchased the said mobile has also denied any such defect. Even it is submitted by the opposite party No. 3 that the complainant has never visited the opposite party No. 3 for any defect after purchasing the same. Therefore, on the basis of the evidence produced by the opposite parties, it was contended that there is no deficiency in service on the part of the opposite parties.
11. There is no dispute that the complainant has purchased the mobile set from the opposite party No. 3 for Rs. 16,300/- vide invoice No. 439 dated 16.8.2015. It is also not disputed that the said mobile set is having a warranty of one year from its purchase. Therefore, the present case is filed on 24.11.2015 is within the warranty period.
12. The onus to prove that the mobile in question is having a manufacturing defect was upon the complainant. However, the complainant miserably failed by leading cogent and reliable evidence to show that the handset was having the manufacturing defect and it is beyond repairable. No job card or service details has been placed by the complainant to indicate that the complainant has ever approached the opposite parties for rectifying the defect in the mobile or has made a request to replace the same with a new one.
- In case Sushila Automobiles Versus Dr. Birendra Narain and Ors 3 (2010) CPJ-130 (NC) wherein it was observed as:-
At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle the complainant has to prove by cogent credible and adequate evidence supported by the opinion of an expert automobile mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential point. The Hon’ble Supreme Court as well as this Commission in a number of cases have held that unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in his backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Merely because the car has been taken to the workshop of the petitioner-dealer several times or because a number of letters/complaints had been addressed to various functionaries and authorities of the opposite party-manufacturing company it will not by itself amount manufacturing defect.
14. Further in case Jose Philip Mampilli Versus Premier Automobiles Ltd. and Another, I (2004) CLT-855 the principle of law laid down was to the effect that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced under warranty.
15. On the basis of the above discussion and citations as referred to above, this Forum is of the view that the complainant has failed to prove manufacturing defect, therefore, the opposite parties are not under obligation to replace the said mobile in question or to refund the price of the same.
16. Now the question arises whether the said mobile is liable to be repaired and to make it in a working condition free from any defect. There is no dispute that the complaint is filed within the warranty period. The complainant has specifically alleged that the said mobile has not been in working condition despite the assurance given by the seller. Moreover, the opposite parties have not placed on record any document to show that the said mobile in question is in working condition and it was earlier repaired. Even the opposite parties have not placed on record any fitness certificate by their Engineers or Mechanics.
17. In case II (2016) CPJ-19 (NC) Negi Sign Systems and Suppliers Company Versus Rijulize Jacob, printer was purchased by the complainant and the machine was not functioning properly. District Forum directed to rectify the defect without any service charges. On filing appeal Hon'ble State Commission directed refund of purchase price. However, the Hon'ble National Commission held that since no technical evidence was produced by the complainant to prove manufacturing defect and if only a part of the printer was defected then complainant was entitled to replacement of that part and not to refund of the price thereof.
18. In another case III (2016) CPJ-126 Rahul Bank Versus Dell India Pvt. Ltd and Another, a Laptop was purchased by the complainant and the complainant within the warranty period approached the seller for repair but repair was not done. District Forum directed to repair the Laptop of the complainant without fail or replace it if it cannot be repaired. The Hon'ble State Commission also confirmed the view of the District Forum.
19. Moreover, it is also the case of the opposite parties that the complainant has not approached them for any such issue and they have also placed on record a letter written by the opposite party to the complainant which is Ex.OP-1/4 wherein in para No. 3 it is mentioned as.-
“In case you are facing any issues with the performance of the same, we would request you to get the product inspected at our nearest ASC, so that we can inspect the same and can render necessary service support.
Further, in para No. 4 it is mentioned as.-
“Without inspection we shall not be able to conclude on this matter and in the absence of knowledge of facts shall not be liable for any consequences arising therefrom. To locate your nearest Authorized Service Centre you can visit our website: http://www.sony.co.in/section/ servicecentres.”
20. There is no document/evidence has been placed on record by the complainant to deny this letter Ex.OP-1/4. This means the opposite parties are ready to render the necessary service to the handset in question and they have never denied any repair to the same.
21. As a result of the above discussion, the present complaint is partly accepted to the extent that the opposite parties are directed to repair the mobile in question of the complainant and to make it in working condition within the period of 45 days from the date of the receipt of the copy of this order. If they found that they cannot be made it in working condition and it is beyond repair then the opposite parties are directed to replace the defective parts with a new one. If the opposite parties after inspection it is found that the mobile set is beyond repairable then the same may be replaced or refund the price of the handset in question to the complainant. However, it is also directed that the complainant should visit the opposite party No. 2 i.e service centre of the opposite parties to get the needful in the light of above observations. Keeping in view the peculiarity of the circumstances there is no order as to costs or compensation. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
12th Day of October 2016
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
