CC No.1356.2014

Filed on 02.08.2014

Disposed on 11.01.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU – 560 027.

DATED THIS THE 11^th DAY OF JANUARY 2017

CONSUMER COMPLAINT NO.1356/2014                                                                                                                                                                                                                                                  

PRESENT:

     Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

             PRESIDENT

                  Smt.L.MAMATHA, B.A., (Law), LL.B.

                           MEMBER

                                             V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.08.2014 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Parties to pay the Original Cost of Handset Rs.29,995/-, mental damage Rs.50,000/-, Transportation charges of Rs.2,000/- and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that on 28^th July 2013 the Complainant had purchased Sony Xeperia ZR (Model No.5502) from Sangeetha, Koramangala, Bangalore for a sum of Rs.29,995/-.  As branding done by the Company on their official website said “Shoot under water in full HD” and Waterproof (IP55/IP58).   It gave him confidence to buy such an expensive piece of Electric Equipment.  But after 9 months of normal day to day regular usage in Bangalore, he started facing various issues with the handset.  The Complainant being an I.T. professional continuously in need of mobile and this problem in the handset was affecting his career as well as mental state of mind.  The Complainant could not receive important work related document that his colleague tried to share with him through Bluetooth.  And on other occasion he could not attend a weekly status meeting as his Earpiece and MIC would not function correctly.  In order to get this problem corrected, the Complainant visited the companies Authorized Service Centre Vigneswar Service in Koramangala.  On 17^th May 2014, the lady at the desk informed the Complainant that this might be a software issue so they need to format your phone and all your phone data will be erased.  Half-heartedly he handed over the phone as he knew all the contacts, various documents, applications collected over a period of 9 months and several hours of downloading would be lost.   The Complainant was told to wait for one hour and after that he got his phone back and went back thinking that all his phones issues were solved.  But that was not the case.  The experienced the same problems as mentioned earlier more frequently.  The Complainant visit the center on 24^th May 2014.  This he was asked to handover his phone for 5 days as the technicians wanted to check what was the reason for these issues.  He was not provided any replacement set to use in the meanwhile.  And not even a printed piece of receipt or a job sheet copy.  Only got the photocopy of bill signed by the lady at the desk, which read “Handset received on 24.05.2014 080-41717087’.   So the Complainant went back to his routine life by borrowing a basic handset from his friend so that he may not miss important calls during that period of time.  Few days passed and he wanted to enquire about the status of his handset.  So the Complainant called the number provided on the photocopy of bill that the lady had given.  The first question that was asked was what is your Sheet number.  The Complainant was stunned by the question.   The Complainant stated that he do not have one, and started explaining that he had visited their centre on Saturday and deposited his handset to the lady.  Then he was asked to provide his name and mobile number which gave them the Job Sheet number they were looking far.  The Complainant asked them to tell him the Job Sheet number for any further reference and was given “W114052800674” and he was informed on the call that the handset is still under testing to find the fault.  The Complainant visited Sony’s Service Centre Website and found out there was a means to track your repair status.  The Complainant was happy, he quickly entered his job ID Number in the field provided.  But again he shock hit him.  The Website read “Please enter valid Repair Job Number” though the Complainant had entered something wrong.  So he tried one more time again the same message was displayed.  So he took a snap shot of the screen.  He still could not believe what he had gotten.  Now to mention the response that he got from the service centre was “The Phone is Water Locked” and hence would not be covered under warranty.  The Complainant informed that phone was water proof.  The reply was “Sir, the phone is not waterproof it’s water resistance”.  The Complainant said “Sorry, what do you mean by That” Then he was told that “We are sorry Sir, but the phone is water locked, we did not see it earlier and as this comes under Water damage hence it won’t covered under the Warranty”.  He can come and collect his phone.  They cannot repair it”.  The Complainant asked “O.K. there must be some way for it to be replaced”.  Then the reply was “We can send the phone to head office and they will provide you the estimates for Replacement.  But that this might take some time”.  After about 8 days the Complainant got a call from the service centre, hoping to hear some good news that he might get his phone replaced after a wait of 2 weeks.  The lady on the other side told “Sir you need to pay Rs.14,000/- for your phone to be replaced”. The Complainant visited to the centre and collected phone.  He could see some wear and tear with his handset but was told due to the testing carried on the phone by technicians and he drop a mail to the company and ask for a replacement as, it was clear from the looks of it was service centre as well as company’s fault to create such faulty sets and earn money from customers, through company’s website and mentioned to resolve his complaint within 15 days or would be forced to get his complaint to Consumer Forum.  He received an automatic mail from the company asking him to be patient as they try to resolve his concern. So the Complainant waited for 2 weeks, and did not receive any support nor response from Sony.  Again Complainant sent another mail on 28.06.2014, informed he would be taking the case for Consumer Forum.  Then he got a response saying your handset has liquid damage and it doesn’t come under warranty.  And the service estimate which was provided to him Rs.14,000/- was done by their service technician.  So they would stand by the assessment and won’t take any further actions over his repeated requests.    Hence this complaint. 

3. In response to the notice, the Opposite Parties put their appearance through their counsel and filed their common version.  In the version pleaded that the complaint is vexatious, baseless and due process of law.  The Sony India Private Limited is engaged in the business of distributing and marketing of mobile phones and other electronic goods under the brand name of “Sony” and it holds an impeccable position in the mobile phone industry in India. The mobile phones of Sony India Private Limited are sold to customers through a network of its authorized dealers and the after sales services on those mobile phones are provided through a network of its authorized service centers across the country.   The liability of the Opposite Parties lies strictly in accordance with the terms and conditions of the warranty provided by it on its products and the Opposite Parties cannot be held liable for claims falling outside the scope of the warranty.  The terms of warranty are clearly not applicable in cases where the product has been damaged by the Complainant due to activities such as damage caused by ingress of liquid or any other external cause which is beyond the control of the Opposite Parties.  As per the records of the company, the Complainant purchased a Sony Xperia Mobile Phone bearing Model No.C5502 and IMEI No.356603050337139 on 28.07.2013.  The Complainant approached the Opposite Party No.2 for the first time on 28.05.2014, that is after using the handset for ten months stating that there was an audio problem in the handset. Upon inspection it was found that the handset was damaged by liquid.  Therefore, the Complainant was accordingly informed that the handset could not be repaired under the terms of the warranty ad was offered a replacement of the handset subject to payment of 50% of the MRP of the handset. However, the Complainant refused the aforesaid offer.  The handset is damaged by liquid was also intimated to the Complainant through email and reiterated the assessment made by the Service Engineer.   In cases of damage by liquid, repairs of handsets turns out to be uneconomical and unreliable.  This is due to the fact that the repairs charges in such cases are almost equal to the price of a new handset.  Moreover, the liquid may have affected more parts that may not be identifiable immediately and may give rise to new problems at a later stage.  Therefore, in order to provide a cost effective remedy to the Complainant, he was offered anew handset at a discount of 50% on the MRP.  The allegations of manufacturing defect and as leveled by the Complainant are absolutely false and baseless and therefore denied.  The handset suffered from any manufacturing defect as alleged or at all, the handset would not have functioned even for a single day.  The Consumer Protection Act, 1986 is a beneficial legislation the same cannot be used as a mechanism to arm twist companies to agree to the unreasonable demands of the consumers like the Complainant in the present case.  Hence prays to dismiss the complaint.

4. The Complainant, Sri.Utkarsh Jaswani has filed his affidavit by way of evidence and closed his side.  On behalf of the Opposite Parties, the affidavit of one Sri.Manav Ujla has been filed.  Heard the arguments of both parties.  

5.      The points that arise for consideration are:-

1. Whether the Complainant has proves the alleged deficiency in service by the Opposite Parties ?
2. If so, to what relief the Complainant is entitled?

6.     Our findings on the above points are:-

                POINT (1):- Affirmative

                POINT (2):- As per the final Order

REASONS

7. POINT NO.1:- By looking into the allegations of the complaint and also the version of the Opposite Parties, it is not in dispute that the Complainant on 28^th July 2013 had purchased Sony Xeperia ZR (Model No.5502) from Sangeetha, Koramangala, Bangalore for a sum of Rs.29,995/-.  Further in order to substantiate this, the Complainant in his sworn testimony, he reiterated the same and produced the Invoice.  By looking into this document, the Complainant on 28.07.2013 had purchased C5502-Xperia ZR-103 Sony Ericsson Mobile for a sum of Rs.29,995/-under Invoice No.SI/FOR/8298.  This evidence of the Complainant had remains unchallenged, thereby to discard the evidence of the Complainant, there is no contra evidence.  Therefore, it is proper to accept the contention of the Complainant that the Complainant on 28.07.2013 had purchased C5502-Xperia ZR-103 Sony Ericsson Mobile for a sum of Rs.29,995/-. 

8. It is further case of the Complainant that after 9 months of normal day to day regular usage of the handset purchased by the Complainant had various issues for the professional use of the Complainant mobile handset is very much essential and this problem in the handset was affecting his career as well as mental state of mind.  The Complainant could not receive important work related document that his colleague tried to share with him through Bluetooth.  And on other occasion he could not attend a weekly status meeting as his Earpiece and MIC would not function correctly and the Complainant visited the Companies Authorized Service Centre Vigneswar Service in Koramangala.  On 17^th May 2014, the lady at the desk told that this might be a software issue so they need to format and after one hour and after that he got his phone back and went back thinking that all his phones issues were solved.  The same problems were repeated again the Complainant visited to the Service Centre on 24^th May 2014 at this time, he was asked to handover his phone for 5 days as the technicians wanted to check what was the reason for these issues.  But not received any piece of receipt or a Job Sheet copy for receiving the handset.  But only got the photocopy of bill, after few days, when the Complainant enquired about the status of his handset.  The first question that was asked was what is your Sheet number when the Complainant explained the same then asked to provide his name and mobile number when they provided Job Sheet number as “W114052800674”. When the Complainant was shocked status of the repair of the handset with the help of Job Sheet number.  The Complainant received response from the service centre phone was water locked.  Hence would not be provide under warranty.  The Complainant asked to replace the handset, then the reply was “We can send the phone to head office and they will provide you the estimates for Replacement.  But this might take some time”. After waiting 2 weeks, the lady informed the Complainant to pay Rs.14,000/- for your phone to be replaced” with new one.   But the Complainant refused the handset.  To substantiate this fact, the Complainant in his sworn testimony, he reiterated the same and produced the Track Repair Status and also emails correspondences.  By looking into this document, it reveals that the entire repair Job number, from this it is very clear that even though the Opposite Parties have not able to provide proper Job Sheet to the Complainant for receiving the handset to get it repair.  As looking into the said mail dt.28.06.2014, the Opposite Party requested the Complainant to be patient on this as we are trying our best to resolve your concern and also another email correspondence dt.29.06.2014 through this email Opposite Parties informing the Complainant the handset is having liquid damage and it doesn’t come under warranty.   So by this evidence, it is very clear that only through email dt.29.06.2014 the Opposite Parties have informed the Complainant regarding the handset is malfunctioning due to liquid damaged till that day he never informed about the damage caused to the liquid damage to the handset of the Complainant and even they have not chosen to provide any receipt for receiving the handset for repair.  This evidence of the Complainant has not been challenged by the Opposite Parties. 

9. The defence of the Opposite Parties is that the Complainant approached the Opposite Party No.2 for the first time on 28.05.2014 and after using the handset for ten months.  But in support of this defence, the Opposite Parties have not placed any evidence that the Complainant approached the Opposite Party No.2 only on 28.05.2014.  On the other hand, it is the specific case of the Complainant first time the Complainant approached the Opposite Party No.2 on 17.05.2014 and on that day the Opposite Party No.2 after receiving the phone return back the handset on the same day without attending properly again the Complainant visited the Opposite Party No.2 on 24.05.2014 and on that day he handed over his handset thereby, it is not proper to accept the defence taken by the Opposite Parties. 

10. The further defence of the Opposite Parties is that upon inspection it was found that the handset was damaged by liquid.  Even to this fact also except the interested version of the Opposite Parties, the Opposite Parties have not placed any evidence.  On the other hand, the Opposite Parties were demanding the Complainant to pay 50% of the MRP for replacement of the defective handset with new one.  It clearly goes to show that since the handset purchased by the Complainant was defective and malfunctioning and that was received by the Opposite Parties for repair but they are unable to carry out the repair and unreasonable demanding 50% of the MRP.  Otherwise, the Opposite Parties could have repair the same by taking proper care and caution or otherwise replace the same.  Thereby, the demanding of 50% of the MRP of the handset by the Opposite Parties that itself is unfair trade practice adopted by the Opposite Parties.  Furthermore the Opposite Parties have not provided any proper service even though the defective handset is within the period of warranty.  Thereby, it is not proper to accept the contention of the Opposite Parties that the handset was damaged they request and it was covered under the warranty absolutely there is no evidence.  On the other hand, even from their version filed by the Opposite Parties clearly goes to show that they illegally demanded 50% of the MRP for replacement of the handset itself is an unfair trade practice and also fails to provide proper service.  Hence, there is deficiency of service on the part of the Opposite Parties.  Hence, this point is held in the Affirmative.

   11. POINT NO.2:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The Complaint is allowed holding that there is deficiency of service on the part of the Opposite Party 1 & 2.

The Opposite Party No.1 & 2 are directed to refund a sum of Rs.29,995/- cost of the mobile handset and also further directed to pay a sum of Rs.25,000/- as compensation for causing mental agony to the Complainant. 

The Opposite Party No.1 & 2 are directed to pay Rs.5,000/- towards cost of the litigation to the Complainant. 

The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 30 days from the date of this order. Failing which the above said amount will carry interest at 18% p.a. from the date of order, till the date of realization. 

Supply free copy of this order to both the parties. 

 (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 11^th day of January 2017)

   MEMBER                                                  PRESIDENT 

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Utkarsh Jaswani, who being Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Invoice dt.28.07.2013
2. Warranty Certificate
3. Track Repair Status
4. Emails dt.29.06.2014 and 28.06.2014

Witness examined on behalf of the Opposite Parties:

1. Sri.Manav Ujla, on behalf of the Opposite Parties by way of affidavit.

  List of documents filed by the Opposite Party:

1. General Power of Attorney  dt.05.03.2014
2. Copy of the order dt.23.07.2013   
3. Letter dt.15.09.2016
4. Sony Broacher important information.  

                   MEMBER                                                       PRESIDENT