State Consumer Disputes Redressal Commission
M/S. Accel Frontline Ltd., vs Miss. Prerna Rane And on 8 July, 2013
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PANAJI -GOA FA No. 32/2013 M/s. Accel Frontline Ltd., Sterling Apartments, S-4, I floor, Vasudeva Dempo road, Above Style Spa-furniture shop St. Inez, Panaji, Goa. . Appellant/O.P. No. 1 v/s 1. Miss. Prerna Rane and 2. Mrs. Nilima Rane St. Cruz, IIhas, Goa. . Respondents/Complainants Appellant/O.P. No. 1 is represented by Adv. Ms. Cecilia Carvalho. Respondents/Complainants are represented by Adv. Shri. M.N. Bharatya. Coram: Shri. Justice N. A. Britto, President Shri. Jagdish Prabhudessai, Member Dated: 08/07/2013 ORDER
[Per Justice Shri. N. A. Britto, President] This appeal is filed by O.P. No. 1 in C.C. No. 108/10 and is directed against order dated 08/02/13 of the lr. District Forum, North Goa at Porvorim by which the lr. District Forum has directed the OPs to refund to the complainants a sum of Rs. 19.500 with interest at the rate of 12% and to pay compensation of Rs. 30,000/- and costs of Rs. 10,000/-
2. We have heard Ms. Cecilia Carvalho, the Manager of OP No. 1 and Shri. M.N. Bharatya, the lr. advocate on behalf of the complainants. The parties hereto are being referred to in the names as they appear in the cause title of the complaint.
3. Some facts are required to be stated to dispose off the appeal.
4. There is no dispute that the complainant No. 2 purchased for the benefit of her daughter complainant No. 1 studying at Dharwad on 1/2/08 a Sony Ericsson mobile for a sum of Rs. 19,500/-. The said mobile was purchased from the dealer M/s. Digital World, O.P. No. 4, in the complaint. The said mobile was manufactured by Sony Ericsson who was not made a party to the complaint. It had a warranty for a period of one year and a warranty card duly signed by OP No. 4 on behalf of the said Sony Ericsson, was handed over to the complainants. The other OPs in the C.C. presumably are the branch offices situated in different States of M/s. Accel Frontline Ltd., a registered Company, registered under the Companies Act, 1956 having its registered office at 75, Nelson Manickam Road, Aminjakarai, Chennai, 600 029.
5. The case of the complainants, in brief, was that they were convinced after many repairs during the warranty period itself that the product was having some primary manufacturing defect and during all the visits the complainants has insisted that the mobile be replaced but OP No. 1 continued to assure the complainant No. 2 that the product may be having some minor problems and they would continue to rectify the same.
6. The complaint was defended on behalf of OP Nos. 1, 2 and 3 by common written version and in the said written version, OP No. 1 had particularly stated that they cannot be held liable for the alleged manufacturing defects, if any, as they are only service providers and their role was restricted only to the extent of providing various warranty and post warranty service to the customer which they had done in the present case and on this ground alone, the complaint had to be dismissed against them. They had further stated that they being the service providers had serviced the mobile (purchased by the complainants) when the same was submitted to them and that there was no specific averment in the complaint with regard to their negligence and the complainants miserably failed to prove any negligence on their part and therefore the complaint was required to be dismissed in limine. They had further stated that from the very documents submitted by the complainant it was proved that the first OP had provided prompt service to the complainant whenever the phone was given to them and as a service provider they had acted in most professional way during the period in question and had rectified all the defects which were pointed out by the complainant during the period in question. They had also denied that there was manufacturing defect in the mobile and the complainant had to submit the same to the examination of an expert.
7. The lr. District Forum has come to the conclusion that the mobile purchased by the complainants had inherent manufacturing defect. Lr. District Forum appears to have readily accepted the assertion of the complainants without any proof. Admittedly, there was no problem with the mobile purchased by the complainants as it worked well atleast for the first 10 months. It was taken for repair for the first time on 26/11/08 with OP No. 5 at Hubli who had repaired the same and returned to the complainants. The mobile of the complainants would not have worked without any problem for the first 10 months in case it had any manufacturing defect. Thereafter the mobile was brought to OP No. 1 at Panaji on or about 12/01/09 with a grievance that the camera had a problem and the touch screen was not working.
The mobile was repaired and returned to the complainants with the keypad replaced and after it was tested that it was found working properly. The mobile was again brought to OP No. 1 on 6/3/09 and by this time the warranty of one year had expired. This time there was problem with display. The LCD was replaced and the mobile was handed over to the complainants after it was tested. Complainants averment in para 9 that the defect was not pointed out is a false statement on the face of the delivery challan produced by the complainants themselves. This service was provided to the complainants free of cost as a special case, as stated by Ms. Carvalho on behalf of OP No.1. The mobile was then again brought to OP No. 1 on 5/8/09 and this time with a grievance that the mobile would turn off during call and remained off. It has been explained by Ms. Carvalho that this was a problem of virus acquired whilst downloading and therefore the software was changed and the complainant was charged Rs. 386/- for gradation of software as this was not covered by the warranty. The mobile was again brought back on 6/10/09 with a grievance that there was no text or picture display and the software was again upgraded and the mobile tested and handed over to the complainants. This time also the complainants were charged Rs. 386/- as software up-gradation was not covered under the warranty.
7.1. There appears to have been no problem thereafter though the complainants claim that the problems continued and complainant No. 2 visited OP No. 1 and complainant No. 2 was ignored by OP No.
2. Thereafter the complainant No. 2 wrote letter dated 31/12/09 to OP No. 1 and OP No. 4 (copy not on record) followed by legal notice dated 18/03/10 calling upon OP No. 1 to replace the mobile within one month failing which they would be liable to appropriate legal action followed by another legal notice dated 30/03/10 addressed to OP Nos. 2 & 3.
8. The Lr. District Forum has not at all considered the defence taken by OP No. 1 to 3 to the effect that they were only service providers and had provided necessary services whenever they were required to do so free of cost during warranty period and on payment, thereafter. As rightly pointed out, by them, there was no allegation of negligence or deficiency in service. The Lr. District Forum has concluded that the repeated future repairs itself confirms the negligence and deficiency of service on the part of the OPs and that their approach was not consumer friendly. This conclusion is contrary to the record, as already indicated. The letter sent on 5/1/10 produced at exhibit 11 (is it dated 31/12/09?) clearly shows that whenever there was any problem and it was brought to the notice of OP No. 1 the same were attended to and rectified and as such it could be said that there was any deficiency in service on the part of OP No. 1.
On the face of the said letter there was no need for OPs to have replied to any of the registered letters sent by the complainants in as much as the fact that the OPs did not respond to the said letters could not be taken as their refusal to attend to any problems.
As already noted, the letter posted on 5/1/10 exhibit 11 - is a clear indication that whenever there were problems with the mobile within the warranty period or beyond the warranty period, were attended to and rectified to the satisfaction of the complainants.
9. OP No. 1 had taken a stance that the complainants could not make a statement that the mobile had any manufacturing defect unless the phone was submitted to the examination of an expert. Regarding this plea, the Lr. District Forum has observed that it is really shocking and surprising to note that whenever the phone was given for repairs with the OPs it was their duty to get the said phone examined by an expert and to find out what was the cause of the problem and that the OPs have failed to examine the said mobile with their expert technician and therefore they cannot shift the burden of getting the said mobile examined by an expert on the Complainant. On behalf of OP No.1, it is submitted with reference to the said observation, that the said finding of the Lr. District Forum is highly erroneous; in that it is well settled in law, that a person who alleges a defect has to prove the same. In our opinion, the submission of OP No. 1 is fully justified. If the mobile had manufacturing defect, it was for the Complainants to prove the same.
We have already concluded that mobile would have not worked well for 10 months if it had any manufacturing defects.
Whatever defects it developed thereafter, they were duly rectified by the service providers of Sony Ericson namely OP No.1 and OP No.5. The Complainants inspite of knowing the stance taken by the OP No. 1 to 3 that they were only service providers chose not to make the manufacturer Sony Ericson-an Opposite Party to the complaint and in its absence, no relief of replacement or refund could be granted to the Complainants. In our view, none of the OPs, in the absence of the manufacturer, on whose behalf the warranty was given, could have been directed to replace the mobile or refund its price in as much as it was not proved by the complainants that the mobile had any manufacturing defect. As already noted, as far as OP No. 1 was concerned it was only a local service provider and their role was restricted to providing various warranty and post warranty services to the customers which they had provided without any grievance from the complainants and as already stated the letter posted on 5/1/10 - exhibit 11 - is a good indication in that regard. The mobile gave problems twice during the warranty period i.e. 26/11/08 and 12/01/09 and the problems were attended to by OP No. 5 and OP. No. 1, respectively. The complainants chose not to make Sony Ericsson as a party to the complaint inspite of having the warranty card issued by them. Complainants chose not to make the said Sony Ericsson an OP inspite of the OP Nos. 1,2,3 having disclosed that they were only service providers and that they had serviced the mobile whenever it was submitted to them.
This they did at their own risk.
10. In our view the complainants had made out no case for refund of price or for replacement and/or for compensation as against OP Nos. 1, 2, 3 and in the absence of Sony Ericsson no relief whatsoever could have been granted to the complainants.
11. In the circumstances therefore we allow this appeal and set aside the impugned order, leaving the parties to bear their own costs.
[Shri. Jagdish G. Prabhudesai] [Justice Shri. N. A. Britto] Member President