DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, CAMP COURT, AT AMRITSAR, PUNJAB.

Complaint Case No : RBT/CC/2018/233.

Date of Institution   : 28.03.2018/29.11.2021.

Date of Decision    : 01.08.2022.

Manjot Singh son of Dr. Rasal Singh resident of # 595, E-Block, Ranjit Avenue, Amritsar.    

                …Complainant Versus

1.Apple India Private Limited, #19 Floor,Concorde Tower C, UB City No. 24, Vittal Mallya Road, Bangalore-560001, Fax No. 918040455197 through its Authorized Signatory.

2.B2X Service Solutions India Pvt. Ltd., Office at #GF-08, The Celebration Mall, Batala Road, Amritsar-143001 through its Authorized Signatory. 

3.Future World Retail Pvt. Ltd., Office at #G-34, VR Punjab, NH-21, Mohali Kharar Road, Punjab, Mohali-160118 through its Authorized Signatory.

4.AWP Assistance (INDIA) Private Limited, Registered office #1st Floor, DLF Square, Phase II, M-Block, Jacaranda Marg, Gurgaon-122002 through its Authorized Signatory.    

                 …Opposite Parties

Complaint Under Section 11 & 12 of the Consumer Protection Act, 1986, as amended upto date. 

 

Present: Sh. Gurkanwal Deep Singh Phawa Adv counsel for complainant.

Sh. Munish Menon Adv counsel for opposite party No. 1.

None for opposite parties No. 2 & 3.

Mrs. Preeti Mahajan Adv counsel for opposite party No. 4.

 

Quorum:-

1. Sh. Ashish Kumar Grover : President

2.Smt. Urmila Kumari : Member

 

(ORDER BY ASHISH KUMAR GROVER, PRESIDENT):

1. The present complaint has been received by transfer from District Consumer Commission, Amritsar in compliance of the order dated 26.11.2021 of the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The complainant has filed the present complaint Under Section 11 & 12 of the Consumer Protection Act, 1986 as amended upto date against Apple India Private Limited and others (hereinafter referred as opposite parties).

2. Brief facts of the case are that the complainant purchased Apple iPhone-X 256GB silver bearing EMI No. 353050097804734 from the opposite party No. 3 and the activation letter issued by the opposite party No. 4. It is alleged that the above said Apple iPhone which was duly insured accidentally got damaged on 28.2.2018 and for the repair of the same the complainant approached the opposite party No. 2 being authorized service centre of opposite party No. 1 and the claim was lodged with the opposite party No. 4 and the opposite party No. 2 issued job card for the same on which it is specifically written that iPhone needs to be replaced and the same was brought to the knowledge of opposite party No. 4. It is further alleged that the opposite party No. 4 refused to entertain the claim as cashless on the ground that the iPhone is not physically damaged, rather it is cosmetic damaged and it can be used. Thereafter, the complainant approached the opposite party No. 1 and advisor told the complainant that it is unsafe to use the iPhone in this very condition and it may to cause any damage to yourself until the phone is repaired. It is further alleged that at the time of purchasing the mobile phone the opposite party No. 3 assured the complainant that in case of any damage, the phone will be replaced/repaired on cashless basis from the authorized service centre of opposite party No. 1. It was very much shocking for the complainant that the iPhone was neither being repaired/replaced even after the lapse of 27 days of deposit. After that the complainant contacted the opposite party No. 4 several times but they did not pay any heed to the genuine request of the complainant. Due to the above said act and conduct of the opposite parties the complainant suffered mental agony and harassment and the same amounts to deficiency in service and unfair trade practice on the part of opposite parties. Hence, the present complaint is filed for seeking the following reliefs.- 

i)To replace the mobile phone with the fully functioning iPhone.

ii)To pay Rs. 50,000/- on account of compensation and Rs. 11,000/- on account of litigation expenses. 

3. Upon notice of this complaint, the opposite party No. 1 appeared and filed written version by taking preliminary objections interalia on the grounds that the present complaint is false and frivolous. That the consumers, who willfully destroy, damage or negligently handle a product are not eligible to claim any relief under the Act. It is further alleged that the alleged damaged caused to the iPhone on account of the negligent misuse by the complainant will be rendered out of warranty and the said damaged is not attributable to opposite party No. 1. It is admitted that the complainant purchased the said iPhone from the opposite party No. 3 for Rs. 1,15,000/-. It is further alleged that the complainant approached the opposite party No. 2 on 18.4.2018, as his iPhone got damaged due to which the display and back panel was physically damaged on 28.2.2018 for which the opposite party No. 2 diagnosed the device and found that the device had physical damage on it and so cannot be covered under warranty and the complainant is liable for out of warranty paid service. Thereafter, the complainant never visited the opposite party No. 2 for any sort of service or issues with the device. It is further alleged that the complainant has violated the terms and conditions of the warranty provision as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, hence the device was rendered out of warranty. It is further submitted that liability of a manufacturer arises only and only when there is inherent defect in the product and manufacturer cannot be made liable and until it is proved by adducing expert evidence. On merits, the opposite party No. 1 denied the all allegations of the complainant and prayed for the dismissal of complaint. 

4. Initially on 15.5.2018 Sh. Navjot Singh Advocate appeared and filed power of attorney on behalf of opposite party No. 2. The opposite party No. 2 filed written version on 4.6.2018. In the written version the opposite party No. 2 has raised preliminary objections interalia on the ground of complainant not come with clean hands and suppressed material facts. On merits, it is submitted that the complainant approached the opposite party No. 2 and the set was deposited on 18.4.2018 and the same was exchanged on 23.4.2018 and the set was replaced and after replacement of phone with new set the present complaint is not maintainable and this fact has not been mentioned by the complainant in his complaint. As such, there is no deficiency in service on its part and prayed for the dismissal of complaint. 

5. The opposite party No. 3 filed written version and submitted that the opposite party No. 3 does not have any independent role to play other than acting as an authorized retailer/seller of Apple Products in the present complaint. The main grievance of the complainant is against the opposite party No. 4 the insurer. The opposite party No. 3 is not bound or liable under the protection plan of opposite party No. 4 and evidently the claim made by the complainant in the present complaint against the opposite party No. 4 being the insurer and prayed for the dismissal of complaint. 

6. Notice was sent to the opposite party No. 4 but due to non appearance the opposite party No. 4 was proceeded against exparte vide order dated 22.5.2018. Later on Mrs. Preeti Mahajan appeared on behalf of opposite party No. 4 and she is permitted to join the proceedings on behalf of opposite party No. 4 vide order dated 28.9.2018.

7. In order to prove his case the complainant tendered into evidence his own affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-9 and closed the evidence. 

8. In order to rebut the case of the complainant the opposite party No. 1 tendered into evidence affidavit of Sh. Priyesh Ex.O.P1/1, copy of the extract of Board Resolution Ex.O.P1/2, copy of terms and conditions of warranty Ex.O.P1/3, copy of service report dated 18.4.2018 Ex.O.P1/4, copy of 2 photographs Ex.O.P1/5 and closed the evidence. 

9. The opposite party No. 2 at the time of filing the written version has filed documents Ex.O.P2/1 and Ex.O.P2/2.

10. No evidence has been produced by the opposite party No. 3 and evidence of opposite party No. 3 is closed by order dated 28.2.2019.

11. Opposite party No. 4 tendered into evidence affidavit of Karan Rana, Regional Network Manager Ex.O.P4/1, copy of letter of authorization Ex.O.P4/2 and closed the evidence.

12. It is important to mention here that on 19.7.2022 Sh. Navjot Singh Advocate counsel for opposite party No. 2 has suffered the statement that I plead no instructions on behalf of opposite party No. 2. 

13. We have heard the Ld. Counsel for the parties and have gone through the documents placed on record by the parties. Written arguments filed by the complainant.

14. Ld. Counsel for complainant argued that the complainant purchased an Apple iPhone-X 256GB silver bearing EMI No. 353050097804734 from the opposite party No. 3. It is further argued that the above said Apple iPhone which was duly insured accidentally got damaged on 28.2.2018 and for the repair of the same the complainant approached the opposite party No. 2 being authorized service centre of opposite party No. 1 and the opposite party No. 2 issued job card for the same on which it is specifically written that iPhone needs to be replaced and the same was brought to the knowledge of opposite party No. 4. Ld. Counsel for complainant further argued that the opposite party No. 4 refused to entertain the claim as cashless on the ground that the iPhone is not physically damaged, rather it is cosmetic damaged and it can be used. It is further argued that at the time of purchasing the mobile phone the opposite party No. 3 assured the complainant that in case of any damage, the phone will be replaced/repaired on cashless basis from the authorized service centre of opposite party No. 1 and the complainant contacted the opposite party No. 4 several times but they did not pay any heed to the genuine request of the complainant. 

15. On the other hand, Ld. Counsel for the opposite party No. 1 argued that the alleged damaged caused to the iPhone on account of the negligent misuse by the complainant will be rendered out of warranty and  the complainant approached the opposite party No. 2 on 18.4.2018, as his iPhone got damaged due to which the display and back panel was physically damaged on 28.2.2018 for which the opposite party No. 2 diagnosed the device and found that the device had physical damage on it and so it cannot be covered under warranty and the complainant is liable for out of warranty paid service. It is further argued by the Ld. Counsel for opposite party No. 1 that the complainant has violated the terms and conditions of the warranty provision as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, hence the device was rendered out of warranty and the  liability of a manufacturer arises only when there is inherent defect in the product and the manufacturer cannot be made liable until it is proved by adducing expert evidence. 

16. The opposite party No. 2 in the written version alleged that the complainant approached the opposite party No. 2 and the set was deposited on 18.4.2018 and the same was exchanged on 23.4.2018 and the set was replaced and after replacement of phone with new set the present complaint is not maintainable and this fact has not been mentioned by the complainant in his complaint.

17. The opposite party No. 3 in the written version alleged that the opposite party No. 3 does not have any independent role to play other than acting as an authorized retailer/seller of Apple Products in the present complaint. 

18. On the perusal of the record it is proved that the complainant has approached the authorized service centre i.e. opposite party No. 2 of the opposite party No. 1 for repair of the mobile set in question and in this regard the opposite party No. 2 has placed on record Delivery Report Ex.O.P2/2 in which it is mentioned the Job Created Date 18 Apr 2018 and Job Closed Date 23 Apr 2018 and in the Column of Condition of Equipment it is mentioned as “Physical Damage” and in the Column of Action Taken it is mentioned as “Unit Replaced and Resolved”. Moreover, in the written version the opposite party No. 2 has mentioned that the set was deposited on 18.4.2018 and the same was exchanged on 23.4.2018 and the set was replaced with new set. But the complainant has failed to rebut the above said version of opposite party No. 2 by adducing any evidence on record. Therefore, as per Ex.O.P2/2 it is proved that the mobile set of the complainant was replaced by the opposite party No. 2 with new one and during the pendency of the present complaint the complainant has not raised any objection against the Delivery Report Ex.O.P2/2 of the opposite party No. 2 till today. Moreover, from the Service Report Ex.O.P2/1 and Delivery Report Ex.O.P2/2 it is proved that the mobile set in question has physically damaged and the Ld. Counsel for opposite party No. 1 has also argued that the complainant has violated the terms and conditions of the warranty provision as per clause (d) to damage caused by accident, abuse, misuse, fire, liquid contact, earthquake or other external cause, hence the device was rendered out of warranty and the  liability of a manufacturer arises only when there is inherent defect in the product and the manufacturer cannot be made liable until it is proved by adducing expert evidence. It is important to mention here that the complainant has also failed to prove on record by producing any expert evidence that the mobile set in question is having any manufacturing defect. 

19. Ld. Counsel for the opposite party No. 1 has relied upon the judgments of The Hon'ble National Commission, New Delhi in case titled Pawan Kumar Versus M/s Nissan Motors India Private Limited bearing Revision Petition No. 2276 of 2017 decided on 3.1.2018 vide which it is held that “Petitioner has failed to place on record any expert opinion regarding alleged manufacturing defect in his vehicle. Deficiency not proved.”

20. Further the Hon'ble National Commission, New Delhi in case titled Sanjay Singh Versus Dabloo Bhagat bearing Revision Petition No. 2840 of 2016 decided on 11.5.2018 vide which the Hon'ble Commission held that “The complainant failed to place on record any technical/expert report to support his allegation that the tractor in question was defective.”

Both these citations are fully applicable to the facts and circumstances of the present complaint as in the present case also the complainant has not filed any expert report, so failed to prove any manufacturing defect in the mobile set. Therefore, there is no deficiency in service and unfair trade practice on the part of the opposite parties. 

21. In view of the above discussion, there is no merit in the  present complaint and same is dismissed. However, no order as to costs or compensation. Copy of the order will be supplied to the parties by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.  

ANNOUNCED IN THE OPEN COMMISSION:

       1st Day of August, 2022

 

 

            (Ashish Kumar Grover)

            President             

 

(Urmila Kumari)

Member