DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.326/2016
Dharitry Phookan
D/o Prasanna Kumar Phookan
Residence:
House No.-112, Top Floor,
Kailash Hills, East of Kailash,
New Delhi-110065
Office:
1) Chember No.114,
R.K Jain Chamber Block, Supreme Court of India
New Delhi-110001
2) J 29, First Floor,
Jangpura Extension
New Delhi-110014
….Complainant
Versus
1. Apple India Private Limited
Having office at: 19th Floor, Concorde Tower C,
UB City, No.24,
Vittal Mallya Road,
Bangalore 560001, India
2. Infinity Retail Limited Trading also known as Croma Retail
Having office at: Plot No.D-14, Near Citi Bank,
South Extension II,
New Delhi-110049
3. GIZMO Help
Having Corporate office at:
76-B, Udyog Vihar, Phase-IV
Gurgaon-122001
4. Unicorn Info Solutions Pvt. Ltd.
B-9, Shivalik, Malviya Nagar,
New Delhi-110017
….Opposite Parties
Date of Institution : 07.10.2016
Date of Order : 09.05.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
1. On the strength of her complaint, the Complainant has prayed for directions to OP -3 and OP-4 to replace Apple iPhone 6, 16 GB gray; to direct OP-3 to pay sum of rupees 15,00,000 to the Complainant for hardship, harassment and unfair trade practice; directions to OP-1 and OP-2 to pay sum of rupees 5,00,000 to the Complainant for aiding and abetting OP No.3 in their unfair trade practices; direction to OPs to pay the cost of litigation and pay pendente lite and future interest @18% p.a.
2. Apple India Pvt LTd. (OP-1) is the Manufacturer of the phone. Infinity Retail Ltd Trading also known as Croma retail (OP-2) is the dealer from whom the phone was purchased. Gizmo help (OP-3) is in the business of providing insurance to electronic products such as Mobile Phones, Laptops etc. Unicorn Info Solution Pvt Ltd. (OP-4) is the Authorized Service Centre of OP-1.
3. Complainant purchased an Apple iPhone 6, 16 GB Gray on 16.08.2015 by paying the consideration amount of Rs.49,601/- to OP-2. It is stated that the Complainant was explained by the employee of OP-1 and OP-2 that such an expensive product should be insured against theft, breakage, loss etc. as repair or replacement of products in an expensive affair. Thereafter, the said employee introduced the Complainant to a representative of Gizmo Help (OP-3)who further recommended to get the phone insured. It was categorically stated that the insurance of Gizmo Help (OP-3) would cover theft for two times, water accident for two times and any kind of breakage for two times in a year. In view of the assurances given that the insurance sold to her will give a complete and total protection for the product, the Complainant purchased the insurance policy by making payment sum of Rs.2,394/-.
4. Complainant was assured that insurance for the product will be immediately activated however on asking for copy of the insurance policy, the Complainant was informed that copy will be mailed to her within few days. The Complainant who was accompanied by a colleague was a witness to all the statement made and assurances given by the representative of OP-2 and OP-3. It is next stated that the Complainant called the customer helpline to request for a copy of the insurance policy. An SMS was sent to the registered mobile number of Complainant confirming that a call has been made, she was again informed that copy of the policy will be mailed shortly. However, the said insurance policy has not been emailed or sent to her postal address till date.
5. It is further stated that on 08.07.2016 Complainant lost her balance and had a nasty fall, the bag containing the phone fell from her hand and handle of her Hide signleather bag broke. Upon reaching her destination when she took out her phone from the bag and then from the cover, she saw that the screen and the tampered glass of the phone was broken.
6. Complainant filed a claim for breakage of the screen on 04.08.2016, OP-3 in response said that they would require 24 hours time for a verification of her claim. The claim form and documents were verified and assessed by OP-3 and thereafter an email and a message was sent to the Complainant on 05.08.2016 asking the Complainant to take the phone to OP-4 for repairs. It is next stated that the official website of OP-3 states that only when repair approval was given, is the handset required to be taken to authorized service centre from where the repair estimate has been obtained Copy of the email and text SMS sent to the Complainant on 05.08.2016 is annexed as Annexure 4.
7. In pursuance to the acceptance and approval of the claim by OP-3, representative ofOP-4 collected the phone from Complainant’s residence on 10.08.2016. It is further stated that on 19.08.2016 Complainant called the service centre to request for early repair as she was facing lot of hardship without her phone. The official of OP-4 then informed the Complainant that the insurer had rejected her claim. On 19.08.2016 Complainant received an email from OP-3 rejecting the Complainant’s claim without assigning any reason or explanation. After several calls to the customer care of OP-3 it was informed that her claim was rejected on the ground of negligence. No explanation was given as to the nature of the alleged negligence.
8. On a specific question asked by the Complainant as to how the claim can be rejected two weeks after its approval and 09 days after the phone was submitted for repairs, no answer was provided. It was during the course of the conversation, Complainant was told that her phone was reinsured with some other insurance company and it was that insurance company who allegedly rejected her request. It is stated that neither in the claim form nor at the time of purchase of the insurance policy or in any correspondence was the Complainant ever informed that the insurance is covered by a third party.
9. It is further stated that Complainant’s phone was collected from her residence on 10.08.2016 and was not returned after three weeks by OP-3 and OP-4. Apprehending some damage or misuse of her phone, Complainant filed a complaint in Malviya Nagar Police Station on 01.09.2016. Finally, Complainant’s phone was delivered to her in the evening 03.09.2016. However, to the shock of the Complainant the phone was handed over to her in a damaged condition and was bent in the middle.
10. It is stated that Complainant’s phone was given to the representative of OP-3 in perfect condition on 10.08.2016 and except for the broken screen there was no other problem with the phone. It is alleged that OP-3 & OP-4 had further damaged her phone while it was in their custody and possession. Alleging, extreme harassment at the hands of the OPs because of the negligence, deficiency of service and unfair trade practices adopted by the Opposite parties Complainant approached this Commission for redressal of her grievances.
11. Despite service as OP-1, OP-2, OP-3 & OP-4 did not file their written statement, their defence was struck off on 17.03.2017. However, Hon’ble State Commission allowed OP-1 to file their written statement subject to certain costs and upon payment of cost, Written Statement of OP-1 was taken on record vide order dated 08.02.2018.
12. OP-1 filed it written version stating inter alia that provisions and terms of Apple warranty specifically exclude damaged products which is the case in the present matter. The warranty clause of OP-1 clearly states that the alleged damage caused to the iPhone on account of the negligent misuse by the Complainant will be rendered out of warranty and the said alleged damage is not attributable to OP-1.
13. It is next submitted by OP-1 that the Complainant purchased the phone in question from OP-2 who is not an authorized dealer/reseller of OP-1. It is further stated that OP-1 was unaware about the Complainant having issued insurance cover on her iPhone. It is stated that OP-1 does not give any sort of insurance on its products either directly or indirectly or via any third parties. OP-2 & OP-3 have admittedly issued an insurance cover to the Complainant’s iPhone hence they are liable to cover the said damaged iPhone for the Complainant . It is further stated that there is no privity of contract between OP-3 and OP-1.
14. It is next stated that Complainant has not produced any expert opinion to prove that the device was defective before the incident , took place. Accordingly, it is prayed that Complainant is not entitled to any of the reliefs prayed for from OP-1 and it is requested that the complaint be dismissed against OP-1 as it is without any basis.
15. Rejoinder to written statement of OP-1 has been filed. Evidence by way of affidavit and written arguments are filed on behalf of Complainant andOP-1. Submissions made are heard. Material placed on record is perused.
16. It is the case of the Complainant that at the time of purchase of her iPhone ,representatives of OP-2 and OP-3 advised, induced and allured the Complainant to buy an insurance policy from OP-3. It is seen from the invoice generated ( appended at Page 19 of the complaint) that OP-2 charged Rs.49,601/- for the phone, Rs.399/- was charged for stuff cool pure tough tempered iPhone 6 and Rs.2,374/- was charged towards Gizmo Secure Ultimate , for the insurance of the iPhone. When the tempered glass and screen of the said phone was broken, Complainant filed the insurance claim with OP-3 which was repudiated.
17. As the averments made by the Complainant have remained uncontroverted and unchallenged qua OP-2 , OP-3 andOP-4 there is no reason to disbelieve the version of the Complainant. It is seen from the record that OP-3 attended the proceedings on 25.05.2017 and offered to replace the phone in question with a new phone. The same was acceptable to the Complainant but she insisted to pursue the complaint for other reliefs. OP-3 declined to award any compensation to the Complainant.
18. It is noticed that no terms and conditions were ever provided to the Complainant despite repeated requests and reminders. Same is evidenced by the SMS annexed as Annexure -2 of the complaint. This commission is not oblivious of the fact that lot of hardship must have been caused to the Complainant more so as she is a professional and in the present era to survive and stay without the phone is rather difficult.
19. This commission is of the opinion that as there was no inherent defect in the phone therefore OP-1 is discharged. OP-2 is found to be deficient in service and indulging in unfair trade practice as the Complainant was charged Rs.2,374/- from the Complainant towards insurance cover on the invoice of OP-2 for OP-3 and also the fact that OP-3 operates from the premises of OP-2. The conduct of OP-3 and OP-4 is not found to be proper on following accounts - as after collection of the phone by OP-4 for repairs, OP-3 informed the Complainant of Rejection which is contrary to what is there on the website ; OP-4 caused unnecessary delay in returning the phone to the Complainant which was finally returned in more damaged condition.
20. In view of the discussion above OP-2, OP-3 andOP-4 are found to be deficient in service and indulging in unfair trade practice. But the fact that the Complainant had used the phone for almost an year before the screen of the phone broke down ; the phone is still with Complainant and also the fact that OP-3 offered to replace the said phone we are of the opinion that ends of justice would be met if OP-3 refunds the amount paid by the Complainant for phone. Additionally OP-2, OP-3 & OP-4 are directed to jointly & severally pay compensation of Rs.35,000/- towards harassment, mental agony & litigation cost within 3 months from the date of order. Failing which OP-2, OP-3 & OP-4 shall be liable to pay compensation of Rs.35,000/- @ 6% p.a till realisation.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website. .
