Order dictated by:
Sh.Anoop Sharma,Presiding Member
- Ravi Rampal complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant had purchased one mobile make iphone 5S,model 16GB having IMEI No. 358842056105805 from one Anmolpreet Singh, who was the original owner of the said mobile set vide bill No. 1240 dated 4.3.2014 for Rs. 53000/-. The complainant after purchase of the mobile on 1.3.2015 got extended the warranty of abovesaid mobile set from opposite party No.2 vide retail invoice No. 00000P0003000015359 by paying an amount of Rs. 3900/-. The abovesaid mobile set is being marketed and manufactured by opposite party No.1, one year extended warranty provided by opposite party No.2 and after sale, service is being provided by opposite party No.3, as such the complainant has availed the services of opposite parties. In the first week of September 2015, the complainant found some spots on screen of the abovesaid mobile set, which were unable to remove with clothe and accordingly the complainant visited opposite party No.3 for its removal as the mobile set was under extended warranty being purchased by the complainant from opposite party No.2 and the complainant was asked to left his mobile set at service centre as the same is required to be diagnose to sort the problem properly. Accordingly the same was handed over to opposite party No.3 vide job No. AMR040915116449 dated 4.9.2015. On 8.9.2015 complainant approached opposite p arty No.3 to get his mobile phone back but the opposite party No.3 handed over the mobile set unrepaired and declined to remove the spots from the screen on flimsy grounds that his request cannot be processed as they found corrosion on display, therefore, declined to repair or replace the same. When the complainant requested the opposite party No.3 that he has purchased the extended warranty for said mobile set from opposite party No.2 which includes the defect in question on that the opposite party No.2 told the complainant to deposit the said mobile with them and to get new handset of same model by paying Rs. 20000/- which the complainant refused to pay. Thereafter the complainant told the opposite party No.3 that he is going to sought relief from Consumer Forum on that officials of opposite party No.3 then demanded Rs. 10000/- from the complainant to replace his abovesaid mobile set with new one for which the complainant again refused to pay being illegal a he has already paid an amount of Rs. 3900/- to the opposite party No.2 and extended the warranty of his mobile set . The complainant approached the opposite parties several times but to no avail. Alleging the same to be deficiency in service, complainant has sought for the following reliefs:-
- Opposite parties be directed to replace the mobile set of the complainant of same model and specification or to refund the amount of Rs. 53000/- cost of mobile set and Rs. 39- amount paid as extended warranty alongwith interest @ 18% p.a. from the date of its purchase ;
- Compensation to the tune of Rs.20000/- alongwith adequate litigation expenses may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1,2 & 3 appeared and filed separate written versions.
3. Opposite party No.3 in its written version has submitted that complainant has not come to the Forum with clean hands. Infact the replying opposite party No.3 is only a Franchisee of Apple India Pvt.Ltd which provides services of repairs at its service station at Amritsar. The complainant had brought the telephone set in question in the service station of opposite party No.3 on 4.9.2015 in which problem which was brought to the notice of service centre reported by the complainant was black spot near vibration button, golden spot near home button and something vertical lines showing under display, charging jack intermittent working and at that time the condition of the equipment was duly mentioned in the delivery report and it was specifically mentioned the condition of the equipment “general uses scratches, minor scratches on all corners, minor dent near hand set jack, need to insect internally, marks of liquid internally. The liquid was visible in the phone set while submitting to the service centre. The terms and conditions for the repair are printed and are part and parcel of service report and as per clause (3) , APSP shall not be obliged to undertake repairs of products found water logged, liquid damage or tempered. The set was not handled properly and due to water logging the set was not functioning properly and as such the request for repair was declined by opposite party No.3 . On merits, it was denied that the opposite party No.3 ever told the complainant to get new handset of same model by paying Rs. 20000/- as alleged. It was also denied that any official of opposite party No.3 demanded Rs. 10000/- from the complainant to replace the abovesaid mobile set with new one, as alleged. While denying and controverting other allegations, dismissal of complaint was prayed.
4. Opposite party No.1 in its written version has submitted that in the present case the service report issued by opposite party No.3 specifically mentions that there is damage in the present iphone due to the complainant’s own fault and not a fault that can be attributed to opposite party No.1 or the device supplied by opposite party No.1. Under the present facts, the opposite party No.3 which is an Authorized Service provider of opposite party No.1 diligently undertook efforts to diagnose the problem with the alleged iphone 5S bearing Sr.No. F2LM37FRFRC4 of the complainant when the same was brought to opposite party No.3 by the complainant. Accordingly, opposite party No.3 made a thorough technical analysis on the iphone as presented by the complainant. During the visual Mechanical inspection on the complainant’s iphone, it was found that there was corrosion inside the iphone. Further, it was a result of the iphone being exposed to liquid hence the device suffered liquid damage. After the said VMI the opposite party No.3 duly informed the complainant that the complainant’s iphone would be liable for out of warranty service due to corrosion in the device which was not attributable to opposite party No.1 but due to negligence of the complainant. Consequently, as per the terms of the Apple Warranty implicated and applicable in the present instance, the complainant’s iphone was beyond repair and not covered under the Apple Warranty. It is pertinent to mention that the extended warranty is also governed by the terms and conditions of the original warranty issued by opposite party No.1 on its products. In the event the product has been damaged or breached the warranty provisions, then the service/replacement will be denied. While denying and controverting other allegations, dismissal of complaint was prayed.
5. Opposite party No.2 in its written version has submitted that the complainant has submitted that it had purchased Apple iphone 5S model 16GB having IMEI No. 358842056105805 from its original owner Mr.Anmolpreet Singh, who had purchased the Apple iphone from Four Hand’s Commuications vide bill No. 1240 dated 4.3.2014 for Rs. 53000/-. Further the complainant approached the answering opposite party and purchased the extended warranty provided by opposite party No.1 by paying an amount of Rs. 3900/- on 1.3.2015. It was submitted that answering opposite party had informed the complainant at the time of purchase of the extended warranty itself that the manufacturer or its authorized service centre shall be responsible for the service related issued of the mobile phone. While denying and controverting other allegations, dismissal of complaint was prayed.
6. In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A, copy of delivery report Ex.C-1, copy of retail sale invoice Ex.C-2, copy of bill Ex.C-3, copy of mail Ex.C-4 and closed his evidence.
7. To rebut the aforesaid evidence Sh.Munish Menon,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Priyesh Poovanna,Country Legal Counsel Ex.OP1/1, copy of warranty terms and conditions Ex.OP1/2, copy of service report Ex.OP1/3 and closed the evidence on behalf of opposite party No.1.
8. On the other hand Sh.Amit Malhotra,Cluster Manager of opposite party No.2 tendered into evidence his duly sworn affidavit Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.
9. Opposite party No.3 tendered into evidence affidavit of Sh.Anuj Sharma,Manager Ex.OP3/1, copy of service report Ex.OP3/2, copy of delivery report Ex.OP3/3 and copy of terms and conditions Ex.OP3/4 and closed the evidence on behalf of opposite party No.3.
10. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
11. On the basis of the evidence on record, ld. Counsel for opposite party No.1 has vehemently contended that in the present case the service report issued by opposite party No.3 specifically mentions that there is damage in the present iphone due to the complainant’s own fault and not a fault that can be attributed to opposite party No.1 or the device supplied by opposite party No.1. As such, the opposite party No.3 which is an Authorized Service provider of opposite party No.1 diligently undertook efforts to diagnose the problem with the alleged iphone 5S bearing Sr.No. F2LM37FRFRC4 of the complainant when the same was brought to opposite party No.3 by the complainant. Accordingly, opposite party No.3 made a thorough technical analysis on the iphone as presented by the complainant. During the visual Mechanical inspection on the complainant’s iphone, it was found that there was corrosion inside the iphone. Further, it was a result of the iphone being exposed to liquid hence the device suffered liquid damage. After the said VMI the opposite party No.3 duly informed the complainant that the complainant’s iphone would be liable for out of warranty service due to corrosion in the device which was not attributable to opposite party No.1 but due to negligence of the complainant. Consequently, as per the terms of the Apple Warranty implicated and applicable in the present instance, the complainant’s iphone was beyond repair and not covered under the Apple Warranty. It is pertinent to mention that the extended warranty is also governed by the terms and conditions of the original warranty issued by opposite party No.1 on its products. In the event the product has been damaged or breached the warranty provisions, then the service/replacement will be denied.
12. On the other hand ld.counsel on behalf of opposite party No.3 has vehemently contended that complainant had brought the telephone set in question in the service station of opposite party No.3 on 4.9.2015 in which problem which was brought to the notice of service centre reported by the complainant was black spot near vibration button, golden spot near home button and something vertical lines showing under display, charging jack intermittent working and at that time the condition of the equipment was duly mentioned in the delivery report and it was specifically mentioned the condition of the equipment “general uses scratches, minor scratches on all corners, minor dent near hand set jack, need to insect internally, marks of liquid internally. The liquid was visible in the phone set while submitting to the service centre. The terms and conditions for the repair are printed and are part and parcel of service report and as per clause (3) , APSP shall not be obliged to undertake repairs of products found water logged, liquid damage or tempered. The set was not handled properly and due to water logging the set was not functioning properly and as such the request for repair was declined by opposite party No.3 .
13. Whereas opposite party No.2 has vehemently contended that complainant had purchased Apple iphone 5S model 16GB having IMEI No. 358842056105805 from its original owner Mr.Anmolpreet Singh, who had purchased the Apple iphone from Four Hand’s Commuications vide bill No. 1240 dated 4.3.2014 for Rs. 53000/-. Further the complainant approached the answering opposite party and purchased the extended warranty provided by opposite party No.1 by paying an amount of Rs. 3900/- on 1.3.2015. It was submitted that answering opposite party had informed the complainant at the time of purchase of the extended warranty itself that the manufacturer or its authorized service centre shall be responsible for the service related issued of the mobile phone.
14. But ,however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant after purchasing the iphone 5S from its original owner Anmolpreet Singh got extended the warranty of abovesaid mobile set from opposite party No.2 vide retail invoice No. 00000P0003000015359 by paying an amount of Rs. 3900/-, copy of retail sales invoice is Ex.C-2 on record. As such the iphone of the complainant was insured for one year . It was the case of the complainant that in the first week of September 2015 the complainant found some spots on screen of the abovesaid mobile set, as such the complainant approached the opposite party No.3 for removal of the defects and in this regard opposite party No.3 issued Job sheet No. AMR040915116449 dated 4.9.2015, copy of job sheet is Ex.C-2 on record in which the problem occurred to the iphone of the complainant have been specifically mentioned. But when the complainant approached the opposite party No.3 for taking delivery of the iphone, opposite party No.3 declined to remove the spots from the screen on the ground that they found corrosion on display, therefore declined to repair or replace the same. But, however, as the complainant has got extended the warranty after spending a huge amount of Rs. 3900/- and at that time the whole mobile phone of the complainant was insured and at no point of time the complainant was made aware the clauses by applying of which the opposite party No.3 declined the genuine claim of the complainant. Ld.counsel for the complainant has argued that the complainant was not provided with any terms and conditions and was not made aware about the clauses of the terms and conditions of the policy as only retail sales invoice vide which the complainant has got extended the warranty by spending a huge amount of Rs. 3900/- , copy of which is Ex.C-2 on record, was provided to the complainant . As such, these terms and conditions as well as clauses do not apply on the complainant .The terms and conditions of the policy were never supplied to the complainant. It has been held by the Hon'ble National Commission in case The Oriental Insurance Co.Ltd. Vs. Satpal Singh & Others 2014(2) CLT 305 that onus to prove that the terms and conditions were supplied to the insured is on the Insurance company. But in this case the opposite party could not produce any evidence to prove that the terms and conditions of the Insurance policy in question were supplied to the complainant. It has further been held by the Hon'ble Supreme Court of India in case M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co.Ltd 2000(1) CPC 596 that where the terms and conditions of the policy were not supplied to the insured, the same are not binding on the insured. Moreover it is also seen that insurance companies show green pastures to the insured persons at the time of selling the insurance policy and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.
The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
15. As the iphone of the complainant was duly insured by opposite party No.2, as such opposite parties No.2 & 3 are under legal obligation to indemnify the loss of the complainant either by removing the defects occurred in the iphone of the complainant or in case of failure to remove the defects in the iphone, the opposite parties No.2 & 3 are liable to replace the i-phone of the complainant with new one of same make or model. The complainant is also entitled to receive a sum of Rs. 2000/- on account of deficiency in service on the part of opposite parties No.2 & 3 besides that the litigation expenses are assessed at Rs. 1000/-. Compliance of this order be made within a period of 30 days from the receipt of copy of the order ; failing which the complainant is entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 27.9.2017
