Karnataka

Bangalore 4th Additional

CC/14/1013

Mr. Abishek Sakalech - Complainant(s)

Versus

Sony Mobile Communications India Pvt Ltd and Others - Opp.Party(s)

Gogi & Gogi Advocates

20 Jun 2018

ORDER

Complaint filed on: 10.06.2014

                                                      Disposed on: 20.06.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1013/2014

DATED THIS THE 20^th JUNE OF 2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Abishek Sakalech, S/o Suresh Sakalech, Aged about 25 years, C/o Rupam Collections, Raichur Road, Sindhanur, Dist: Raichur   By.Adv.Gogi & Gogi	1	Sony Mobile Communications India Pvt. Ltd., A-31, 2nd Floor, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044. Rep by Managing Director
		2	V MOBILES, Regd. Off: # 3/6, Hari Mansion, Opp. Uma Theatre, Chamarajpet, Bangalore-560 018. Rep by Managing Director Also at: #12, Near Ayyappa Swamy Temple, Opp.Krishna Sagar Hotel, Madiwala, Bangalore-560 068. Rep by Managing Director.   By.Adv.Vinay S.Hegde

 

 

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the opposite parties directing to replace the existing mobile phone with new mobile phone. In alternate repay the costs/value of the mobile phone, to pay compensation of Rs.35,000/- towards loss of earning, suffering, pain trauma, mental agony, cost of various visits to the service centre and costs of legal notices and expenses, to pay interest at 24% of costs from the date of filing of this complaint till the date of payment.

2.       The brief facts of the case of the complainant are that with lot of desire and expectations approached the OP-2 for purchase of smart phone. After having seen the advertisement, representations of the OP-1, the Complainant wish to have Sony Xperia-Z mobile phone out of his hard earned money. Considering the representation and the advertisements of Opposite Parties, the Complainant personally visited the OP-2 to seek further clarification regarding representation and assurances of Opposite Parties. The Complainant submits that it has been widely advertised that the Sony Xperia-Z mobile phone is ultra slim, water proof and dust resistant durable design cell phone. Further represented that the said mobile is largely sold for its quality and clarity.  The Complainant submits that considering all representations and assurances by Opposite Parties, the Complainant decided to purchase and accordingly purchased the same with OP-2 on 14.3.2013, bearing IMEI No.355666050134765 by paying sum of Rs.38,000/-. At the time of purchase, the OP-2 represented that the said product has one year warranty provided by the manufacturer. After having purchased the said mobile, the Complainant could not even use it about 3 months. One day when the Complainant took it to use it, it is noticed that the mobile phone was in the switch off mode and the Complainant tried to switch on the mobile, but same could not switch on the mobile phone was not working. Immediately the Complainant approached OP-2, the OP-2 directed to approach the Complainant to the other Sony Authorized Service Centre. Accordingly, the Complainant approached Sony Authorized service Centre by name Abhivrudhi Tech, No.235/12, ‘Suraj Centre’, Ground Floor, 27^th Cross, 7^th Block, Jayanagar, Bangalore-560 082 and requested for inspection of the said handset. After due send deliberations, the authorized service centre took the handset for its inspections, it is to the utter shock and surprise to the Complainant that the phone is not in working condition and it is beyond repairable condition, the authorized service centre has issued a letter with inspection note that liquid ingression/damage, they have also done entry level screening which has failed. They have certified that water or liquid has damaged that phone and it is on beyond repairable status. The Complainant submits that the handset never fell into water or liquid, even if it has fallen into water same shall not lead to damage of phone as it is represented and assured that the world slimmest full HD smart phone, the only water proof full HD smart phone and same is both elegant and durable and it is not only resistant to dust, but is also water proof and represented that customer can even film in full HD under water with automatic activation of HDR etc., when this being the case the handset provided to the Complainant is manufacturer defective piece, and the said defect is behind reparable status has certified by the authorized service centre. In view of the said manufacture defect, the Complainant made to suffer with huge investment in defective piece and lost his expectations towards his dream of having a smart phone.  The Complainant has suffered financially, mentally and have lost his faith and trust in the marketing system for the sufferings.  The Opposite Parties are solely and severally liable to compensate the Complainant for having provided with defective piece handset. Due to the negligent and deficiency of service, the Complainant had to suffer with his emotional and mental attachment with the mobile phone, even if the defect is cured as it would lose its originality, which cannot be measured in terms of money. Thereby the Opposite Parties were issued a legal notice dt.10.1.2014 calling upon them to compensate the Complainant by replacing existing handset with new mobile phone and to pay all the incidental charges, suffering, loss of earning, loss of mental peace etc., In the event of failure to replace the same, the Opposite Parties were called upon to pay the costs incurred to purchase the mobile phone along with incidental charges and compensation for the costs and suffering incurred due to deficiency of service on the part of the Opposite Parties. The Opposite Parties have failed to compensate as called upon in the legal notice dt.10.1.2014 which are served on 11.1.2014 and 13.1.2014, the Opposite Parties have sent reply on 17.2.2014 on untenable ground. The Opposite Parties though have denied the problem existing in the mobile phone and have taken several other contentions which are contrary to the facts of the case. After having referred to the notice, the OP-2 called the Complainant to surrender the handset to their verification. The Complainant agreed and surrendered the same. But after verification, they gave an offer of adjusting 70% cost of the said handset upon paying differential amount for the new handset. The Complainant had given offer of not claiming any incidental or compensation cost if they replace old handset with the new handset. But the Opposite Parties are refused for the same. Hence, this complaint.              

3.       After issuance of the notice, the Opposite Parties 1 and 2 did appear and filed the common version denying the contents of the complaint filed by the Complainant. Para a, b and c of the version are self-explanatory in respect of issuance of the authorization letter in favour of the OP-2. The main objections taken by the Opposite Party is that there is no deficiency of service on their part. The Complainant has failed to understand the difference between the terms water “proof” and water “resistant”. Hence submits that the Opposite Parties claim the handset in question to be water resistant and not water proof as alleged by the Complainant as per certain international standards. Further, the handset will not suffer damage on account of water/moisture subject to the instructions provided in the user guide marked as Anx-6. The Opposite Party further submits that as per warranty terms of Clause-3, it is held responsible for the alleged defect found in the complaint i.e. water log. The said clause read thus:

“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”

To substantiate its stand, the Opposite Parties have also place reliance on two decisions in Para 12 of its version in the matter of Sabeena Cycle Emporium Chennakhaada V/s Thajes Ravi M.R.Pancha Villa Vedar Ezkhone P.O. (1992) I CPJ 97 wherein the Hon’ble Commission has held that where the Complainant alleges defects in the goods, the Forum is bound to determine this fact on the basis of clear evidence by way of expert opinion. Hence, the claim of the Complainant cannot be considered in the case of Keshab Ram Mahto V/s Hero Honda Motors Limited and another (I (2003) CPJ 244) and also S.P.Barthwal V/s Maruti Udyog Limited., & Another (I (2003) CPJ 298). On these grounds and other grounds, prays for dismissal of the complaint.

4.       The Complainant to substantiate his case, filed his affidavit evidence. The Opposite Party’s authorized signatory filed affidavit evidence. None of the documents got marked by both the parties. Anyhow, we place reliance on the documents produced by the Complainant and Opposite Parties. The Complainant as well as Opposite Parties has filed their written arguments. Heard both sides.

 

           5. The points that arise for our consideration are:

         1) Whether the Complainant proves the deficiency in service on

            the part of the OPs, if so, whether he is entitled for the relief

            sought for?

 

         2) What Order?

                  

6.  Our answers to the above points are as under:

 

Point No.1: In the Affirmative 

Point No.2: As per the final order for the following

REASONS

7. POINT NO.1 :   We have briefly stated the contents of the complaint as well as the version of the Opposite Parties. As per the case of the Complainant he has purchased Sony Xperia-Z mobile phone (hereinafter referred as the said mobile handset) which is ultra slim, water proof and dust resistant durable design cell phone. According to him, after purchase of the said mobile handset, he could not even use it about 3 months. One day when the Complainant took it to use it, it is noticed that the mobile phone was in the switch off mode and the Complainant tried to switch on the mobile, but same could not switch on the mobile phone and was not working. Even he approached the OP-2, the OP-2 directed to approach the Complainant to the other Sony Authorized Service Centre. Accordingly, he approached Sony Authorized service Centre by name Abhivrudhi Tech, No.235/12, ‘Suraj Centre’, Ground Floor, 27^th Cross, 7^th Block, Jayanagar, Bangalore-560 082 and requested for inspection of the said handset. After due send deliberations, the authorized service centre took the mobile handset for its inspections, but to the utter shock and surprise to the Complainant that the phone is not in working condition and it is beyond repairable condition. The authorized service centre has issued a letter with inspection note that liquid ingression/damage, they have also done entry level screening which has failed. In this context, they have certified that water or liquid has damaged that phone and it is on beyond repairable status.  Hence, the Complainant has placed reliance on the contents of the letter dt.28.8.2013 which read thus:

Sony Authorized Service Centre

Abhivrudhi Tech

No.235/12, ‘Suraj Centre’,

Ground Floor, 27^th Cross, 7^th Block,

 Jayanagar, Bangalore-560 082

 

Dated:28.08.2013

Dear Mr.Abhishek,

 

This has reference to your request and subsequent inspection outcome of your SONY XPERIA Model-Z bearing IMEI No. 355666050134765

 

Please note that we have inspected the set and our observation is-Liquid Ingression/Damage. We have done entry level screening (ELS) and it has failed. This can be certified by the liquid indicator on the phone which has turned to ‘Red’ colour (under normal circumstances it will be white colour)

 

This proves that water or liquid has damaged the phone and it is beyond repairable status as we found it.

 

We are returning the product to you unrepaired. 

 

Further, the Complainant has also placed reliance on the press release dt.25.6.2013 in respect of the logging of the said Xperia Z ulta which is the same device in question wherein features are stated at only water proof HD smart phone which read thus.

Xperia Z Ultra is both elegant and durable. With an impressive rating of IP55 and IP58, this smartphone isn’t only resistant to dust, but is waterproof too-giving you the freedom to enjoy it anywhere. You can even film in full HD underwater, taking your large screen smartphone experience to a new level. The camera features “Exmor RS for mobile”, HDR for both photos and film, and Superior Auto mode automatically activates HDR and noise reduction when needed so you’ll get stunning imagery even in challenging light conditions

Emphasis supplied by us

Referring to the same, the Complainant submits that he never throw it inside the water, even if assuming for a moment that accidentally it was fell down, but water logging as noticed by the service centre may not happens which appears to be afterthought just to evade the responsibility.

8.       Per contra, the learned counsel of the Opposite Party submits that as per Clause-3, the Opposite Parties are not responsible. In the said Clause, we do not notice with regard to the water log. The said clause is with regard to normal wear and tear due to misuse. When the water log is not specifically incorporated under Clause-3, we cannot accept the contention taken by the Opposite Party that the said mobile handset suffers from water log. Anyhow, it is the new model released by the Opposite Parties having advanced features in it. The Complainant has purchased the same by paying huge amount of Rs.38,000/-. The said defect has been noticed within 3 months i.e. well within the warranty period. The Opposite Parties have specifically admitted that the said mobile handset is not repairable. Under such circumstances, expert’s opinion is not necessary, hence the decision cited by the Opposite Party is not applicable. It is settled proposition of law as laid down in the decision reported in I (2018) CPJ 174 (MP) in the case of Gupta Communication V/s Puran Lal & Anr. Wherein it is held as under: 

Consumer Protection Act, 1986-Sections 2 (1)(f), 2 (1)(g), 15-Mobile set-Manufacturing defect-Mobile stopped functioning and got handed on several occasions-service centre neither repaired nor gave any mobile-deficiency in service-apportionment of liability-so far as liability of manufacturing company is concerned it is the issue between manufacturing company and dealer for which the Complainant cannot be made to suffer-If mobile sold by appellant did not function properly in period of warranty, appellant being seller of mobile would clearly be under obligation to either repair or replace mobile or to pay back consideration received by him to Complainant –District Forum has appreciated facts and law in just and proper manner.

In the light of the decision cited supra, we come to the conclusion that the said mobile handset was found to be defective within warranty period. Under such circumstances, the Opposite Parties are duty bound either to replace the similar set having similar feature or else to refund an amount of Rs.38,000/-. As we have proposed to give similar set having same feature or else to an amount of Rs.38,000/- cost of the mobile handset, we do not propose to pay any compensation to the Complainant by the Opposite Parties. Anyhow cost of litigation is fixed at Rs.2000/- .Accordingly, this point is answered in the affirmative.

9.       POINT NO.2: In the result, we pass the following:

ORDER

The complaint filed by the Complainants is allowed. The Opposite Parties 1 and 2 are jointly and severally liable to replace the defect mobile handset bearing IMEI No.355666050134765 which is produced before this Forum with new similar set having similar feature. If not, to refund the cost of the said mobile handset covered under the invoice No.61975 dt.14.3.2013 for an amount of Rs.38,000/-. With regard to the compensation and other reliefs are denied. Anyhow cost of litigation is fix at Rs.2000/-.

The Opposite Parties 1 and 2 are directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

The Office is directed to handover the said mobile handset to the Complainant which is produced by him before this Forum to surrender the same before the Opposite Parties.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer and pronounced in the open Forum on 20^th June 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)   PRESIDENT

 

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Abhishek Sakalech.,who being the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Doc-1	Phone bill
Doc-2	Legal notice
Doc-3	Post receipts and acknowledgements
Doc-4	Letter dt.28.8.2013
Doc-5	Press release

 

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

 

Meena Bose, Authorized Signatory of Sony India Pvt. Ltd., who being the Opposite Party was examined.

 

Copies of Documents produced on behalf of Opposite Party

 

Doc-1	Copy of the order
Doc-2	Copy of the board resolution dt.4.7.2011
Doc-3	Letter of authority issued in favour of Sony India
Doc-4	Copy of the warranty terms
Doc-5	Copy of the letter dt.17.2.2014
Doc-6	Copy of the user guide

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT