BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

23^rd DAY OF DECEMBER 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to rectify the defects in the mobile set or in the alternate to replace new mobile set to him and to pay compensation of Rs.3,00,000/- together with litigation cost.

2. The sum and substance of the complaint are as under:

That the complainant purchased a mobile phone of make Sony XPERIA ZR, bearing IMEI No.356603050837161, model No.C5502 from the authorized dealer Naga Electronic, Rajajinagar, Bangalore for a consideration of Rs.25,350/- on 03.02.2014.  That the complainant has always taken care while using the mobile as per the instructions mentioned in the user manual issued by the OPs.  That despite having taken care of above mobile set, in the said manner the complainant started facing problem with display, touch screen not working, hanging problem and overheating.  That the complainant approached OP-4, an authorized service centre for service and rectification of the above stated problems as the handset in question is within the warranty period from the date of purchase.  That at the time of issue of job sheet, OP-4 erroneously mentioned that mobile has display problem, which was disputed by the complainant, therefore, OP-4 rectified the mistake in the job sheet and received the handset for service.  That if the display damages were not covered under the warranty then why OP-4 received the handset for service.  That after verification of the handset the authorized service centre failed to resolve the defect found in the handset and issued a letter dated 27.10.2014 offering to replace the said damaged handset.

That OP-4 in their letter dated 27.10.2014 alleged that display problem in the mobile set occurred due to external cause.  That OPs have provided a false inspection report alleging that the handset has been damaged physically and such physically damaged handset is not covered under warranty.  That the OPs have only recorded display problem and did not take care of hanging problem, over heating problem during normal usage hours.  That the OPs have failed to rectify the defect despite taking sufficient time and are trying to shark their liability by making false allegations of physical damage.  That according to warranty agreement, the OPs are bound to provide warranty on the product, if it fails to operate under normal use and service, due to defect in design materials or workmanship.  But now OPs are not ready to fulfill the terms and conditions of warranty agreement and have malafidely offered to exchange the phone with new unit at special rate of Rs.11,495/- i.e., 50% discount on new MRP.  That the above said discount offer made by the OPs clearly denotes the admission on part as the manufacturing defects in the handset which is covered under the warranty.  That when OPs failed to rectify the defects in the handset free of cost as it was in a warranty period the complainant issued several e-mails and when they did not respond to the same, he caused a legal notice for which OP-1 has sent an untenable reply.  Therefore, the complainant was forced to approach the Forum for redressal.   

3. In response to the notice issued OPs appeared through their advocate and filed their version.  The sum and substance of the version are as under:

That it is true that the complainant has purchased the handset in question on 03.02.2014.  That OP-1 provided a warranty of one year on handset from the time of its original purchase and the liability of the OPs strictly lies in accordance with the terms and conditions of the warranty provided by them and they cannot be held liable for claims falling outside the scope of warranty.  That the relevant terms and conditions provided by OP-1, to the complainant are as follows.

“Subject to the conditions of this Limited Warranty, Sony warrants this product to be free from defects in design, material and workmanship at the time of original purchase by a Consumer, and for a subsequent period of one (1) year, which is the warranty period”. ……..

“If, during the warranty period this product fails to operate under normal use and service, due to defects in materials or workmanship, the Sony authorized distributors or service partners will, at their option either repair or replace the product in accordance with the conditions stipulated herein.”

Furthermore clause-3 of the terms of warranty provided by the Opposite party no.1 to the complainant clearly states the following:

“This Warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the product.  Nor does this warranty cover any failure of the product due to accident, modification or adjustment, acts of God or damage resulting from liquid."

That OP-1 has also provided 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 within the OPs are liable for any damages/defect in the project.  That the complainant after enjoying handset in question for almost 8 months approached OP-4 on 25.10.2014 with a issue of “Display Damaged and Touch not working”.  However upon thorough inspection by the service engineer it was found that the display is physically damaged which was thoroughly demonstrated to the complainant by the service engineer of OPs.  That there was no inherent defect in the handset as alleged.  That the complainant did not abide by the instructions outlined in the user guideline which the handset got damaged.  That in such a condition the handset could not be covered under the warranty as the same was damaged due to its negligent use.  That the complainant despite knowledge of his own wrong and with a view to cause harassment issued a false legal notice dated 22.11.2014 to OPs calling upon them to pay Rs.50,000/- with interest @ 18% p.a, Rs.10,000/- towards legal cost.  That after receipt of the said legal notice, OP-2 sent a reply dated 29.12.2014 stating the fact of physically damaged due to external cause seemingly due to mishandling or lack of care etc.  Nevertheless as a goodwill gesture towards its customers OPs just to avoid any dispute with the complainant offered the complainant a new Xperia ZR handset in exchange at 50% MRP, to which he was not ready.  That this offer of discount was made only in order to maintain customer satisfaction and was not admission of any liability on the part of the OPs.  However, the said offer was refused by the complainant as the complainant wanted to get it repaired on free of cost basis which is contrary to the terms and conditions of the warranty.  That the complainant has not annexed any report of an independent expert as defined under section 2(1) (a) of the Consumer Protection Act, 1986 with regard to any alleged defect in the said handset.  That, there is no deficiency of service on the part of OPs.  That the complainant has come up with this false complaint with an intention to make wrongful gain.  Therefore, OPs pray for dismissal of the complaint with costs.    

4. The points that arise for our determination in this case are as under:

        5. The complainant as well as OP-1 tendered their evidence by way of affidavit reiterating the respective contention.  Both parties produced certain documents in support of their pleadings.  Written arguments have been submitted.  We have also heard the oral arguments.

6. Our answer to the above issues are as under:

REASONS

7.  Admittedly complainant purchased a mobile handset manufactured by OP-1 Sony Xperia ZR bearing IMEI No.356603050837161, model No.C5502 from authorized dealer (OP-3) at Bangalore for a consideration of Rs.25,350/- on 03.02.2014.  Admittedly the said handset is covered with a one year warranty issued by manufacturer.  The warranty so issued by OP-1 is governed by the terms and conditions mentioned therein.

8. After nearly 8 months from the date of purchase, the complainant alleges that, he started facing display problem, touch screen not working, hanging problem and overheating of the handset.  Therefore, he approached OP-4 for rectification of the said defects.  As soon as he approached OP-4, the concerned at OP-4 had received the said handset for repairs by issuing a job sheet dated 25.10.2014.  The complainant alleges that though there was no damage, display damage of the handset it was wrongly mentioned by OP-4, that there is a display damage for which he raised objections.  Complainant claims that, OP-4 admitted that there is no such display damage and recorded as faulty in the job sheet.  OPs denied that there was no display damage at the time of receiving handset for repairs.  It is pertinent to note that the word ‘faulty’ is in the handwriting of complainant and under his signature.  Therefore, it cannot be believed that OP-4 accepted that there is no damage or display damage in the handset while accepting the same for repairs.

9. OP in their version contended that warranty provided is for one year on the handset from the time of its purchase and the liability of the manufacturer strictly lies in accordance with the terms and conditions of the warranty and manufacturer/OP-1 cannot be held liable for the claims falling outside the scope of the warranty.  The complainant claims that the set did not suffer any external damage as alleged by the OPs and it suffers from manufacturing defects and therefore OPs are liable to rectify the said manufacturing defects, free of cost basis.  He further claims that, he has used the said handset as provided under the user manual and has taken all the care to see that no external damage is caused to the handset.  Complainant further denies the allegations of OPs that the set had suffered external damage.

10. The relevant terms of warranty which are necessary to decide the dispute in the case on hand are as under:

“This Warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the product.  Nor does this warranty cover any failure of the product due to accident, modification or adjustment, acts of God or damage resulting from liquid."

11. OP-1 took up a contention that on inspection of the hand set by their service engineer the display of the phone was found to be physically damaged due to external seemingly due to mishandling or lack of care etc.  It is further contended by the OP-1 that there was no any inherent defect in the handset was found.  Therefore, it is contended by the OPs that as per terms and conditions of the warranty they are not liable to rectify or repair the physical damage caused to the said handset due to external cause either by mishandling or by lack of care.  The learned counsel for the OPs referring to the terms and conditions of the warranty, as extracted above, argued that, OPs are not liable to either repair or replace the handset though it is in warranty period as the same has suffered physical damage due to mishandling.  Admittedly the terms and conditions of warranty does not cover for any failure of the product due to accident, modification or adjustment, acts of God or damage, resulting from liquid.

12. Though complainant denies that the said handset has suffered any physical damage but did not get the handset examined by an expert to substantiate that the handset in question has not suffered any physical damage as alleged by OP.  In absence of any independent report by an expert, the self serving testimony of the complainant alone is not sufficient to believe that the handset has not suffered any external damage.  The complainant ought to have taken necessary steps for examination of the handset by an expert.  The moment it was contended by OP in their reply notice that the handset has suffered physical damage and therefore not covered by the terms and conditions of the warranty.  Therefore, in absence of independent corroboration we are unable to accept the contention of the complainant that the said handset suffers with manufacturing defects and not with any external damage.

13. In a judgment rendered by Hon’ble Kerala State Commission in the matter between Sabeena Cycle Emporium Chennakhaada Vs. Thajes Ravi M.R Pancha villa vedar Ezkhone reported in (1992) I CPJ 97, it has been held that where the complainant alleges certain defects in the goods, the Forum is bound to determine the facts on the basis of clear evidence by way of expert opinion.  In the case on hand, it is for the complainant to establish by way of an expert report that the handset in question does not suffer physical damage due to external cause.  However the complainant has failed to discharge his burden.

14. Despite the fact that the defects noticed in the handset are not covered by the terms and conditions of the warranty, the OP offered the complainant replacement of the handset at 50% of MRP of Xperia ZR, but the complainant has refused the said offer.  The conduct of OP in offering replacement of the handset at 50% of the MRP does not indicate their admission of any manufacturing defect in the said handset.

15. In view of the facts and circumstances of the case and the discussions made in the above paragraphs, we are of the opinion that, the complainant is not entitled to any relief as claimed and the complaint is liable to be dismissed.  Accordingly point Nos.1 & 2 have been answered.  

16. The order could not be passed within the stipulated time due to heavy pendency.   

17. In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 23^rd day of December 2016)

MEMBER                          MEMBER                      PRESIDENT

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Witnesses examined on behalf of the complainant dated 07.07.2015.

1. Sri. Surendra K Rao

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 07.08.2015.

1. Sri.Priyank Chauhan.    

Document produced by the Opposite party:

   MEMBER                         MEMBER                       PRESIDENT

      Vln*