Ms. Rachna Arora Member

1.       The complainant   has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant purchased one APPLE Iphone 6s mobile handset from Opposite Party No.3 vide Invoice No.16171030 dated 13.10.2016 for Rs.47000/-. Opposite Party No.2 is the authorized service centre of the Apple Mobile Set, whereas Opposite Party No.1  given the warranty  of one year of the Mobile Set in question.  Said Mobile Set was giving the trouble of hanging and no display from the date of purchase and no battery backup and give  shocks when put to use, the complaints to the said effect were made to Opposite Party No.2 which tried to rectify the same, but unable to do the rectification. Mobile Set in question continue with the problems as such and the complainant after spending a huge amount on the purchase, the same was always hapless and she again sent the Mobile Set in question to the Opposite Party No.2 for second time on 10.01.2017 with the same complaint when the Mobile Set in question again started giving same problem, but this time, Opposite Party No.2 gave an excuse that most of the problems of non functioning of the Mobile Set in question can not be rectified, but they changed the battery of the Mobile Set in question and handed over back the Mobile Set in question in the same old condition.  Said Mobile Set again for the  third time became non functional and the display became blank and the Mobile Set in question was handed over to the Opposite Party No.2 for rectification, but till the filing of the present complaint, when so many days have been passed, said  has not handed back the Mobile Set and is in the custody of the said Opposite Party. Said Mobile Set in question contains the valuable data stored in it. The aforesaid acts of the Opposite Parties in not setting right the Mobile Set in question and selling the defective Mobile Set in question is an act of deficiency in services, mal practices, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant.           Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties be directed to replace the Mobile Set in question with new one of the same make and model or in alternative refund Rs.47,000/- alongwith interest @ 12% per annum from the date of payment of Mobile Set in question till realization. 

b)      Opposite Parties be directed to pay the compensation of Rs.50,000/- to the complainant.

c)       Opposite Parties be directed to pay the adequate cost of the litigation.

d)      Any other relief to which the complainant is entitled to under the law, equity, justice and fairplay be also awarded.       

Hence, this complaint.

2.       Upon notice, opposite parties No.1 ,2 & 3 appeared separately and contested the complaint by filing  their separate written version.

3.       Opposite Party No.1 contested the complaint by filing the written version taking preliminary objections therein inter alia that Iphone 6s sold in India by Opposite Party No.1 through their authorised dealers/ resellers are known for their cutting-edge technology and utmost customer satisfaction. Due to the said attributes the Iphone 6s undergoes strict quality tests to ensure that the said products  maintain high standards to ensure that they do not fail to meet industry standards. It is also submitted that Opposite Party No.1 is a world renowned market and innovation leader and has been the flag bearer of technological advancements in the telecommunication devices, computing and communications space. Opposite Party No.2 inspected the Mobile Set in question and found that there was no defect detected and he was informed about the same and the complainant  has till date deliberately not collected the same from Opposite Party No.2.  On merits, it is  submitted that upon inspection the Opposite Party No.2 found there were no issues in the iphone and it was perfectly alright. There is no alleged defect identified in the said Iphone till date. Despite the complainant being informed about there being no alleged defects in the said Mobile Set in question, he has now refused to collect it back from Opposite Party No.2. He is deliberately not collecting it in order to file this  frivolous complaint.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

4.       Opposite Party No.2  contested the complaint by filing the written version taking preliminary objections therein inter alia that Opposite Party No.2 is only a franchise of Apple India Private Limited, which provides services of repairs at its service centre, Amritsar.  Since there is no fault found in the Mobile Set in question and the Mobile Set in question is perfect in functioning, even the Mobile Set in question has been diagnostic by the replying Opposite Party and the Mobile Set in question is perfectly alright and is functioning properly. On merits, it is submitted that the set was functioning properly, but the same has been handed over by the complainant on 7.12.2016 claiming the fault ‘battery not get fully charged to 100% and battery drainage issue, mobile data auto drained”  and the set was delivered after fully satisfaction of the complainant as no fault was found in the Mobile Set in question vide delivery report dated 14.12.2016 and again on 6.1.2017 the complainant again submitted the Mobile Set in question with the complaint that ‘unexpected power of again and  again’ and for the satisfaction of the complainant, Opposite Party No.2 changed the old battery of the Mobile Set in question with a new battery with full satisfaction of the complainant. The Mobile Set in question is completely perfect and no fault is found in the set.   Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

5.       Opposite Party No.3  contested the complaint by filing the written version taking preliminary objections therein inter alia that the Opposite Party No.3 is not liable to pay  any compensation to the complainant. If any award is passed against the Opposite Party and the same may be passed against Opposite Party No.1 and 2. On merits, it is submitted that the complainant has purchased one Apple Iphone 6s from the Opposite Party No.3 because the Opposite Party No.3 is a seller of electronics goods of Apple Iphone.  It is submitted that the Mobile Set in question of the complainant was sold  by the Opposite Party No.3 being a seller.  In fact all the assurance of repair and service was given by Opposite Party No.1 and 2. All the terms and conditions in detail are given in the booklet issued by the manufacturer.  Opposite Party No.3 is only a seller. The complainant has purchased the Mobile Set  in question from 3 after complete satisfaction. The complete sealed handset was given to the complainant at the time of purchase, but the complainant has not connected Opposite Party No.3 regarding any defect till date. Hence, there is no deficiency in service on the part of Opposite Party No.3. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

6.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2   to Ex.C6  and closed his evidence.

7.       On the other hand, to rebut the evidence of the complainant, the Opposite Party No.1 tendered into evidence the affidavit of Sh.Priyesh Poovanna, country legal counsel Ex.OP1/1, copy of authorisation Ex.OP1/2, copy of warranty conditions Ex.Op1/3. Opposite Party No.2 tendered into evidence affidavit of Sh.Anuj Sharma, Manager Ex.OP2/1 alongwith copies of documents Ex.OP2/2 to Ex.Op2/8. Opposite Party No.3 tendered into evidence the affidavit of Sh.Ganesh Kapoor, Store Manager Ex.OP3/1 and thereafter, the Opposite Parties closed their respective evidence.  

8.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

9.       The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and contended that the complainant purchased one APPLE Iphone 6s mobile handset from Opposite Party No.3 vide Invoice No.16171030 dated 13.10.2016 for Rs.47000/-. Opposite Party No.2 is the authorized service centre of the Apple Mobile Set, whereas Opposite Party No.1  given the warranty  of one year of the Mobile Set in question.  Said Mobile Set was giving the trouble of hanging and no display from the date of purchase and no battery backup and give  shocks when put to use, the complaints to the said effect were made to Opposite Party No.2 which tried to rectify the same, but unable to do the rectification. Mobile Set in question continue with the problems as such and the complainant after spending a huge amount on the purchase, the same was always hapless and she again sent the Mobile Set in question to the Opposite Party No.2 for second time on 10.01.2017 with the same complaint when the Mobile Set in question again started giving same problem, but this time, Opposite Party No.2 gave an excuse that most of the problems of non functioning of the Mobile Set in question can not be rectified, but they changed the battery of the Mobile Set in question and handed over back the Mobile Set in question in the same old condition.  Said Mobile Set again for the  third time became non functional and the display became blank and the Mobile Set in question was handed over to the Opposite Party No.2 for rectification, but till the filing of the present complaint, when so many days have been passed, said  has not handed back the Mobile Set and is in the custody of the said Opposite Party. Said Mobile Set in question contains the valuable data stored in it. The aforesaid acts of the Opposite Parties in not setting right the Mobile Set in question and selling the defective Mobile Set in question is an act of deficiency in services, mal practices, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant.  

10.     On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contentions of the ld.counsel for the complainant on the ground that Iphone 6s sold in India by Opposite Party No.1 through their authorised dealers/ resellers are known for their cutting-edge technology and utmost customer satisfaction. Due to the said attributes the Iphone 6s undergoes strict quality tests to ensure that the said products  maintain high standards to ensure that they do not fail to meet industry standards. It is also submitted that Opposite Party No.1 is a world renowned market and innovation leader and has been the flag bearer of technological advancements in the telecommunication devices, computing and communications space. Opposite Party No.2 inspected the Mobile Set in question and found that there was no defect detected and he was informed about the same and the complainant  has till date deliberately not collected the same from Opposite Party No.2.  On merits, it is  submitted that upon inspection the Opposite Party No.2 found there were no issues in the iphone and it was perfectly alright. There is no alleged defect identified in the said Iphone till date. Despite the complainant being informed about there being no alleged defects in the said Mobile Set in question, he has now refused to collect it back from Opposite Party No.2. He is deliberately not collecting it in order to file this frivolous complaint.  Opposite Party No.2  has also repelled the aforesaid contention of the complainant on the ground that  Opposite Party No.2 is only a franchise of Apple India Private Limited, which provides services of repairs at its service centre, Amritsar.  Since there is no fault found in the Mobile Set in question and the Mobile Set in question is perfect in functioning, even the Mobile Set in question has been diagnostic by the replying Opposite Party and the Mobile Set in question is perfectly alright and is functioning properly. On merits, it is submitted that the set was functioning properly, but the same has been handed over by the complainant on 7.12.2016 claiming the fault ‘battery not get fully charged to 100% and battery drainage issue, mobile data auto drained”  and the set was delivered after fully satisfaction of the complainant as no fault was found in the Mobile Set in question vide delivery report dated 14.12.2016 and again on 6.1.2017 the complainant again submitted the Mobile Set in question with the complaint that ‘unexpected power of again and  again’ and for the satisfaction of the complainant, Opposite Party No.2 changed the old battery of the Mobile Set in question with a new battery with full satisfaction of the complainant. The Mobile Set in question is completely perfect and no fault is found in the set. The contention of the Opposite Party No.3 is that Opposite Party No.3 is only a seller. The complainant has purchased the Mobile Set  in question from 3 after complete satisfaction. The complete sealed handset was given to the complainant at the time of purchase, but the complainant has not connected Opposite Party No.3 regarding any defect till date and hence there is no deficiency in service on the part of Opposite Party No.3.

11.       Undisputedly, the complainant purchased one APPLE Iphone 6s mobile handset from Opposite Party No.3 vide Invoice No.16171030 dated 13.10.2016 for Rs.47000/-, copy of the bill accounts for Ex.C2. It is also not disputed that Opposite Party No.2 is the authorized service centre of the Apple Mobile Set, whereas Opposite Party No.1  given the warranty  of one year of the Mobile Set in question as fully mentioned on the bill itself Ex.C2. The case of the complainant is that  Mobile Set in question  was giving the trouble of hanging and no display from the date of purchase and no battery backup and give  shocks when put to use, the complaints to the said effect were made to Opposite Party No.2 which tried to rectify the same, but unable to do the rectification. On the other hand, the Opposite Parties No.1 and 2 has denied the defect in the mobile in question. To prove his case, the complainant has produced on record the copies of service report Ex.C3, Ex.C4, Ex.C5, and copy of delivery report Ex.C6. It is also not disputed that the Mobile Set is still in the custody of Opposite Party No.2. The question is that if there was no defect in the newly purchased Mobile Set in question, what was the need for the complainant to file the present complaint by spending huge money and by hiring a advocate.  It is the not the dispute that the Mobile Set in question became  defective within one year  from the date of purchase on which the complainant has spent huge amount of Rs.47000/- as per bill Ex.C2,  and in this way, the Mobile Set in question was within warranty period.  It is not disputed that the Mobile Set in  dispute started giving problem within warranty period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

 Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.  In the instant case, the AC  in question started giving troubles within warranty period.

In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that

 “the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

12.     So, in such a situation, we direct all the Opposite Parties jointly and severally to refund the price of the Mobile Set in question amounting to Rs. 47,000/- to the complainant  within 30 days from the date of receipt of copy of this order.    All the Opposite Parties are also jointly and severally  directed to pay Rs.1,000/- to the complainant on account of compensation, besides Rs.500/- as costs of litigation.   Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated: 19.09.2017.                  (Rachna Arora)                              (Anoop Sharma)                                                                Member                                   Presiding Member