BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 27th day of July 2021
Filed on: 24/03/2018
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt.Sreevidhia.T.N Member
CC.No.146/2018
Between
| Dinesh Kumar P.B., S/o.P.S.Balakrishna Pillai, Puthiya Veedu House, Thengode P.O., Kakkanad, Ernakulam District,
Kochi-682 024 | :: | Complainant (By Adv.G.G.Manoj, Adv.S.Sarathprasad, V/2, Empire Building, High Court End, Old Railway Station Road, Cochin-18) |
| And |
1. | M/s.Mobile King, Basement Floor, Penta Menaka, Shanmugham Road, Ernakulam-682 031 | :: | Opposite parties |
2. | M/s.Apple India Private Limited, 19th Floor, Concord Tower C, UB City, No.24, Vittal Mallya Road, Bangalore-560 001 | :: | (o.p 2 rep. by Adv.Sreekala Krishnadas, M/s.R & P, 42/1917 C, Vallamattom Building, Old Railway Station, Cross Road, Kombara, Ernakulam-18) |
3. | Ample Technologies Private Limited, No.34/1000, Marottichodu Road, Near Tata Motors, Edappally, Kochi-24 | :: | (3rd o.p. Rep. by Adv.P.Jayabal Menon, M/s. J& J Associates, T-3, 3rd Floor, Empire Building, Old Railway Station Road, High Court East End, Kochi-682 018) |
O R D E R
V.Ramachandran, Member
1) A brief statement of facts of this complaint is as stated below:
The complainant purchased a mobile phone from the opposite party on the assurance and belief that the i phone of the opposite party is of superior quality and on contradictory to that, the phone became defective within a span of six months after the date of its purchase, showing white color Air gap at the left edge of the display and the touch intermittently not working and the data not committed. Hence on 07.10.2017, the complainant approached the opposite party No.3 who is the authorized dealer of apple i phone and the 3rd opposite party accepted the i phone for repair. On 10.10.2017 the 3rd opposite party returned the phone stating that the i phone do not have any hard ware issue. Due to the malfunctioning of the display and touch screen, the i phone was not in a working condition. Apart from that the paint of the i phone is peeling of and due to the white colour gap on screen and peeling of paint, the phone has got a shabby appearance. Further the phone started to heat up while using internet. The apple guaranteed the i phone against defects in materials for one year from the date of purchase. The complainant purchased the i phone on 05.04.2017, and hence the phone is within warranty period upto 04.04.2018 midnight. The opposite parties are liable to replace the phone and for that purpose the complainant repeatedly complained to the opposite parties and no action had been taken by the opposite parties. The allegation of the complainant is that the opposite parties are liable to replace the i phone since selling defective goods by misleading the customer amounts to unfair trade practice. The complainant sent a legal notice to the 2nd opposite party and the opposite parties do not have shown any interest to settle the matter. The complainant states that he had spent his hard earned money of Rs.70,000/- for purchasing the hand set. The complainant alleges that he had suffered severe mental agony and hardship due to the reluctant stand of the opposite party by providing a defective i phone and due to the deficiency of service meted out to the complainant by the opposite parties. The complainant had filed the complaint before the Forum/Commission seeking for relief of awarding return of cost of Rs.70,000/- as cost of defective mobile phone and also to award Rs.25,000/- for the loss and damages sustained to the complainant for the mental agony and stress undergone by the complainant and also to award Rs.5,000/- towards the cost of the proceedings.
2) Notice was sent to the opposite parties from this Forum/Commission and the 2nd and 3rd opposite parties appeared and filed version. The 1st opposite party has not filed the version.
3) Version filed by the 2nd opposite party
The 2nd opposite party in the version filed had stated that their company is a renowned leader in the field of communication and they are giving utmost value in serving the customer. The present complaint is malafide and the damage of product is by external factors which are not associated with manufacturing/inherent condition of the product and such acts which discharged the warranty policies of manufacturers cannot claim relief under the Consumer Protection Act, 1986. The 2nd opposite party further stated that the details as to how the warranty can be obtained by quoting their terms and conditions of service of warranty, and the conditions at which warranty does not apply to the customers.
4) Version of the 3rd opposite party
It is stated by the 3rd opposite party that the alleged damage caused to the i phone is due to the negligent misuse of the phone by the complainant and rendered out of warranty and hence the said alleged damage is not attributed to the 3rd opposite party. The 3rd opposite party is the authorized service provider of the 2nd opposite party and the complainant approached the 3rd opposite party and the 3rd opposite party had restored the device into latest Operating System and no hardware issues were found and cosmetic damage is not covered under warranty. The complainant has not produced any expert opinion to substantiate his arguments that there is damages for the i phone purchased by the complainant from the 1st opposite party and hence the complainant has failed to prove that there is any manufacturing defect for the i phone. The damage caused on the phone is due to the negligent handling of the device by the complainant. On 07.10.2017, the 3rd opposite party diagnosed the device and found no hardware issue and found that there was cosmetic damage on the display and restored the device into latest O.S and thus restored the issue and returned the phone to the complainant. Thereafter the complainant never visited the 3rd opposite party (who is the authorised service provider of the 2nd opposite party) and all the averments of the complaint are false and against the facts and denied by the 3rd opposite party in their version.
5) The main points to be analysed in this matter are as follows:-
(i) Whether there is any deficiency of service or unfair trade practice sustained to the complainant from the opposite parties?
(ii) If so, whether the complainant is entitled to get any compensation from the opposite parties?
(iii) Cost of the proceedings?
The complainant filed proof affidavit and the evidences were marked as Exbt.A1 to A3. The opposite parties has no oral evidence. The opposite party adduced documentary evidence marked as Exbt.B1. PW1 is examined in box and deposition recorded.
6) Point Nos. (i) and (ii)
On verification of the evidences adduced by the complainant, it is seen that the complainant purchased an apple i phone from the 1st opposite party as per Exbt.A1 produced by the complainant for Rs.70,000/- on 05.04.2017. As per Exbt.A2 which is a repair acceptance form issued by the 3rd opposite party, in which it is seen that the phone was given to the 3rd opposite party for service on 07.10.2017 for services and mentioned by the 3rd opposite party that it is within the warranty period stating under warranty - Exbt.A3 is a copy of communication sent by the 3rd opposite party to the complainant stating that the i phone is having cosmetic damage on display and passed all metrics and therefore returning to the complainant. All these evidences were taken into account and thoroughly perused. Exbt.B1 produced by the opposite party which is only a copy of the warranty conditions and that has also been thoroughly perused into and taken into account.
Considering all the above, we are of the opinion that the i phone purchased by the complainant from the 1st opposite party on payment of Rs.70000/- on 05.04.2017 has become defective on or before 07.10.2017 the date on which the phone was given to the 3rd opposite party for service. The 3rd opposite party in its communication sent to the complainant has stated that the phone is having cosmetic damage on display, and also, that the customer has reported complaint on touch issue. Eventhough it further reads that the issue is restored and the device is working as per Apple specifications, cosmetic damage on display is admittedly seen on the i phone by the 3rd opposite party. It is to be taken into account that the complainant has purchased the i phone only on 05.04.2017 and the damage due to cosmetic damage is noted on it by the 3rd opposite party on 07.10.2017, that is around a period of six months from the date of purchase of the i phone. The complainant has purchased the phone for Rs.70,000/- on the concept that the i phone of the opposite parties is of superior quality, but cosmetic damage has been occurred on it as accepted by the opposite party on the phone around a period of six months. This very clearly shows that the i phone is not of having the expected quality or made with ensured superior quality materials as claimed by the opposite parties and hence there is no need of any expert opinion to prove this and hence there is defect and consequently deficiency thereon is proved from the side of the opposite parties and hence issue No.(i) is proved in favour of the complainant.
7) Point No. (ii)
Since point No. (i) is proved in favour of the complainant, complainant is eligible to get compensation from the opposite parties.
7) Point No. (iii)
The complainant has spent his valuable time and money to contest this case before this Commission, therefore the point No.(3) is also taken in favour of the complainant.
8) In the result we partly allow the complaint and direct as follows:
1. The 1st opposite party shall replace the i phone of the complainant with another i phone of the same price on production of the defective phone by the complainant for replacement with warranty for a remaining period from the date of expiry of the substituted phone.
2. The 1st, 2nd, 3rd opposite parties shall jointly and severally pay Rs.5,000/- towards costs of the proceedings to the complainant.
The above orders shall be complied with, within 30 days from the date of receipt of a copy of this order, failing which the complainant is eligible to get an amount of Rs.70,000/- from the 1st opposite party along with 9% interest from the 31st day onwards till the date of realization of this amount.
Pronounced in the Commission on this the 27th day of July 2021.
Sd/-
V.Ramachandran, Member
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia T.N, Member
