Order-16.

Date-05/05/2016.

This is an application u/s. 12 of the C.P. Act, 1986.

           Complainant in brief in his complaint has submitted that he bought a Sony Xperia Z3(D6653/XPERIA Z3/WHITE) being Serial No. 355098060166407 on 29-11-2014 from Sidhans Electronics Pvt. Ltd. Centre, Mumbai, India and the said set is waterproof and protected against the ingress of dust and is waterproof and protected against low pressure jets of water and also dust tight.

          But on October, 27, 2015 phone started given the problem related to volume keys i.e. very low call sound, in spite of the volume being set at maximum level and non-detection of USB port when connected to the computer when the complainant began to phone to various Service Centres the service centre has taken the phone as out of warranty due to liquid ingression and Teknoplaza has given an estimate of approx. Rs.18,000/- to fix the reported problems of phone though the said phone was under warranty till 20-11-2015.

          Complainant has submitted that such sort of activities of the OP manufacturer and the service centre is no doubt unfair trade practice on the ground that there was no rainfall in Kolkata and the same had not been used under adverse condition like swimming, drowning etc.   Matter was reported to the customer care many times but they did not pay any heed rather they reported that they will not repair the phone with free of cost though there is warranty. 

          In the above circumstances, complainant has appeared before this Forum for fair justice and redressal.

          On the other hand, OPs by filing written statement submitted that it is the intention of the OPs to serve the customer and to provide goods at the premium range and also to enable most impeccable after sales service and there is no intent under any circumstances.  But in the present case complainant brought a physical damaged set and insisted for repair without cost whereas it is specifically mentioned in the warranty terms that physical damage cases are not covered under warranty.

          It is fact that complainant approached the OP1 on 29-11-2014 and on inspection it was found that the mobile had an issue due to physical damages and resultant water ingression.  So, a lot of parts were to be replaced.  Complainant was explained about the same and an estimate of Rs.18,000/- was handed over to the complainant but he refused to pay and hence, the handset could not be prepared and the service centre found that the problem was on account of water ingression as the liquid indication paper turned red on being inserted through the USB port but complainant concealed this fact before this Forum and has not appeared before this Forum with clean hands.  Therefore, the present complaint should be dismissed.

          When the problem in the phone was on account of physical damage and resultant water ingression in the mobile phone so there is no liability on the part of the OP as per warranty terms and condition to repair it at free of cost.

          As because there was water ingression in the internal parts and it could only be repaired on charge basis and he also signed the job sheet but later on as an afterthought refused to pay and kept harping on the warranty period and further the warranty clause simple speaks about that warranty does not cover the physical damage so, there was no negligence, deficiency or any sort of unfair trade practice on the part of the OP for which the present complaint should be dismissed.

Decision with Reasons

On an indepth study of the complaint and after hearing the Ld. Lawyer of both the parties including the defence of the OPs and further considering the job sheet it is found that in the job sheet nowhere it is noted that there is any physical damage only it was noted scratch (liquid ingression).  For the sake of argument if it is accepted that the set was disturbing for liquid ingression then how it is certified that it is waterproof and dust tight.  Moreover, in the warranty there is no caution clause that though it is liquid proof and dust tight, water may ingress through other holes.  There is no such caution in the warranty or the phone that the charging point or other points or holes through which liquid ingression may be caused but it is known to all that when any item is certified by the company that it is water proof in that case in all corner it is water-proof.  Otherwise it must be noted that the set is waterproof but certain items of the phone are not waterproof but that is not noted.  So, relying upon certification in respect of water proof and dust tight we are convinced to hold that the said set is waterproof and dust tight so, question of liquid ingression does not arise.  But when the engineers of the OP pointed out that liquid ingression is caused then it is clear at the time of manufacturing there was some defects for which liquid ingression was caused that means it was not properly water-proof and properly did not checked by the manufacturer at the time of selling the same.  In this context, it is to be mentioned that all over the world safety and security of any product must be in details and if it is noted against any product the same is waterproof and dust tight then there is no question to say by the manufacturer subsequently that water was ingressed due to fault of the customer. But in the present case no doubt OPs have admitted that the product is waterproof and dust tight then how the liquid was ingressed that is not properly explained.  At the same time it is found that it has become a practice of the manufacturer to deviate from the warranty clause and other matters.  Further it is found from the documents that the product is protected against the ingress of dust and water and if that is the fact it is clear that invariably in respect of the product there are some manufacturing defects for which liquid was ingressed for that reason.  So, complainant is not at all responsible and he has his no fault. 

Truth is that phone is within the warranty period for replace or repairing and OP service centre pointed out that repairing is possible but as because it is liquid ingress complainant shall have to pay but question of payment by the complainant does not arise when it is protected against ingress of dust ad water that means there is some defect in manufacturing for which liquid ingress caused but for that reason complainant cannot be blamed but anyhow in most of the cases, the manufacturer and service centre are taking such plea only to avoid their liabilities and when it was under warranty period and the set was waterproof and dust tight in that case OP is liable to repair it at free of cost and make it usable and hand over it to the complainant having no fault in using the same in daily life by the complainant.

Further it is proved that the plea as taken by the OP is completely baseles and it is peculiar that in the job card nowhere it is stated that the set is physically damaged.  Only it is noted scratch and within bracket liquid ingress and when it is waterproof set then how liquid ingress can be caused and moreover, complainant is very educated and knowledgeable person and she knows how to use it for which he purchased it at a cost of Rs.50,000/- and she has her capacity to maintain it and she read everything from the literature, therefore, she purchased it and after 11 months all the defects were detected that means defects were there and ultimately water was ingressed but there was no chance of water ingress when it is waterproof and dust tight that means it come under the purview of wear and tear and so, the OPs are legally bound to repair the same at their own cost when warranty is there and make it fit for use like a new one.

Considering the above fact we are convinced to hold that as per warranty clause and terms and condition of the warranty complainant is entitled to get relief against the OPs and OPs are bound to repair the same at their own cost when warranty is there and make it fit for use like a new one.

Considering the above fact, we are convinced to hold that as per warranty clause and terms and condition of the warranty complainant is entitled to get relief against the OPs and OPs are bound to repair the same at free of cost and to handover the set fit for daily use in the life of the complainant.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.3,000/- against the OPs.

          OPs are jointly and severally hereby directed to repair the said set i.e. Sony Xperia Z3 within one month from the date of this order and make it usable and fit for use of the complainant and hand over it with such certificate that it free from all defect and to pay the cost amount and also an extended warranty for 6(six) months and the order must be complied with by the OPs jointly and severally within one month from the date of this order failing which the OPs jointly and severally shall have to pay penal damages  at the rate ofRs.3,000/- per month till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.

Even if it is found that OP is reluctant to comply the order in that case penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.