BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 25/06/2013

Date of Order : 18/08/2015

Present :-

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 460/2013

Between

And

O R D E R

V.K. Beena Kumari, Member.

1. The complainant, the Managing Director of one of the leading business groups in Kerala purchased an 'iPhone 5' 16 GB (Serial No. C33JWEGODTWD) on 27-01-2013 from the 2^nd opposite party for Rs. 43,750/-. The 1^st opposite party Apple India Pvt. Ltd., Bangalore is the manufacturer of the above said phone. The complainant purchased the product from the 2^nd opposite party Mobile King, Ernakulam and the 3^rd opposite party Redington (India) Ltd. is the authorised service centre of the 1^st opposite party. The 1^st opposite party provided one year warranty for the iphone from the date of purchase ie. from 27-01-2013. While using the above iphone, the complainant found that the camera of the set is not working and the product is developing heat abnormally. On the very next date of purchase ie. on 28-01-2013, the complainant through his representative approached the 3^rd opposite party service centre for the rectification of the above defects. The technical support engineer of the 3^rd opposite party asked the representative of the complainant to come again after 3 or 4 days as the software of the 3^rd opposite party was not working. Accordingly, the complainant approached the 3^rd opposite party on 01-02-2013 for getting the iphone after curing its defects. But the 3^rd opposite party instead of issuing the repaired iphone, returned the iphone without repairing the same. However, the 3^rd opposite party issued a receipt on 01-02-2013 to the representative of the complainant in token of having received the iphone. The 3^rd opposite party declined their service on the ground that the bottom portion of the iphone showed a bent on the bottom portion and that the 1^st opposite party rejected the warranty case. The complainant contended that the above act of rejection of services under the warranty amounted to deficiency in service on the part of the opposite parties. The complainant however, repaired the iphone by approaching M/s. Super Shop at Menaka Complex, Banerji Road, Ernakulam after paying Rs. 3,000/- towards service charges. The complainant sought for orders from this Forum to the opposite parties to replace the impugned iphone with a brand new iphone, to pay Rs. 25,000/- towards compensation for the inconveniences and mental agony suffered by the complainant, to pay Rs. 3,000/- towards expenses incurred for repairing the iphone by the Super Shop during the warranty period and to pay costs of the proceedings.

2. Notices were issued from this Forum to the opposite parties. The 1^st and 2^nd opposite parties chose to remain absent from the proceedings in this case. The 3^rd opposite party appeared before this Forum and filed its version.

3. The version of the 3^rd opposite party :

The 3^rd opposite party Redington (India) Ltd. having its registered office at SPL Guindy House, Guindy, Chennai represented by Sri. Paul Jacob working as Accounts Executive denied the various allegations raised in the complaint and submitted that the 3^rd opposite party is providing 1^st level support to Apple customers as per the terms and conditions imposed on it by the manufacturer without receiving any consideration during the warranty period. The Apple Ipods and iphone provided to the Apple customers shows minor problems. The opposite parties will do the software up-gradation to rectify the defect during the initial screening or if the fault is related to hardware, the 3^rd opposite party, upon manufacturer's confirmation, will provide replacement of the device during the warranty period and in case of out of warranty period, the 3^rd opposite party will provide replacement on payment of the exchange price of the device by the apple customers. The 3^rd opposite party submitted that the complainant approached the opposite parties on 01-02-2013 complaining of “camera not working and Device heating”, that the service engineer found the damage at the bottom corner of the device and the claim of the complainant against the warranty coverage was rejected on getting confirmation from the 1^st opposite party. It is also submitted that the 'Housing Dent' of the device purchased by the complainant is a customer induced damage and warranty does not apply to cosmetic damage, including but not limited to scratches, dents and broken plastic parts or to defects caused by normal wear and tear or otherwise due to the normal aging of the device is unrelated to a manufacturing defect does not validate warranty coverages. The allegation of the complainant that the 3^rd opposite party's service centre had unnecessarily harassed the complainant is only a figment of imagination of the complainant invented by the complainant with a view to gain unjust enrichment from the 3^rd opposite party. It is further submitted that the complainant failed to make out a case against the 3^rd opposite party and to establish any deficiency in service on the part of the 3^rd opposite party. The 3^rd opposite party sought for dismissal of the complaint with costs.

4. The evidence in this case consisted of the oral evidence submitted through the Power of Attorney of the complainant and the documentary evidences marked as Exts. A1 to A7 on the side of the complainant. Neither oral nor documentary evidence furnished by the opposite parties. Heard the counsel for the complainant and the 3^rd opposite party.

5. From the above pleadings, the following issues emanated for consideration :-

1. Whether the complainant is a consumer as envisaged under Section 2 (1)(d) of the Consumer Protection Act, 1986?

2. Whether the complainant proved there is deficiency in service on the part of the opposite parties, so as to enable him to get compensation from the opposite parties?

3. Reliefs and costs?

6. Issue No. i. :- The complainant is the Managing Director of one of the leading business groups in Kerala. The complainant purchased an 'iPhone 5' 16 GB (Serial No. C33JWEGODTWD) for Rs. 43,750/- on 27-01-2013 from the 2^nd opposite party dealer Mobile King, Ernakulam as evidenced by Ext. A1 invoice No. 16841 dated 27-01-2013. While using the above said iphone, the complainant found that the camera of the set is not working and the set is developing abnormal heat. On the very next day of the purchase, the complainant approached the 3^rd opposite party for repairing the set, but the 3^rd opposite party returned the set without repairing the set. Therefore, the complainant is claiming replacement of the iphone, compensation and refund of expenses incurred for repairing the iphone along with costs. But the complainant being the Manager of one of the leading business groups in Kerala, cannot be consider as a 'consumer' as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. A person who obtains or purchases goods for using the goods for commercial purpose does not come under the definition of “consumer” under the Consumer Protection Act, 1986. Hence, we find that the complainant is not a 'consumer' and the complaint filed by the complainant is not entertainable and is therefore dismissed.

7. Issue Nos. ii. and iii. :- Having found the issue No. (i) against the complainant, we are not inclined to entertain the other issues. The costs of the proceedings shall be borne by either parties.

8. In the result, this complaint is dismissed without prejudice to file complaint before the appropriate Civil Court, if so advised, by seeking exclusion of the time taken to prosecute this complaint before this Forum relying on the decision of the Hon'ble Supreme Court in Lakshmi Engineering Works Vs. P.S.G. Industrial Institute reported in (1995) 3 SCC 583.

9. The complaint is accordingly dismissed.

Pronounced in the open Forum on this the 18^th day of August 2015

Forwarded/By Order, Sd/- V.K. Beena Kumari, Member.

Sd/- Cherian. K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil